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LAMf UBRARY
A. CHAUNCEY NEWLIN COLLECIION
OF
OCEANS LAW AND POUCY
LAW LIBRARY
OF THE
UNIVERSITY OF VIRGINIA
r
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REPORTS OE CASES
DETERMINED BT THE
HIGH COURT OF ADMIRALTY
AND UPON APPEAL THEREFROM,
Temp, SIR THOMAS SALUSBURY and SIR GEORGE HAT,
Judges, 1758-1774.
BY
SIR WILLIAM BURRELL, Bart., </l7 y^
LL.D., M.P., F R S.; P.S.A,, etc. ;
TOGETHER WITH
EXTRACTS FROM THE BOOKS AND RECORDS
OF
THE HIGH COURT OF ADMHIALTY AND THE
COURT OF THE JUDGES DELEGATES,
1584-1839.
AND A OOLLECnOK OF
CASES AND OPINIONS UPON ADMIBALTY MATTERS,
1701-1781.
EDITED BT
REGINALD G. MARSDEN,
OF THE ntNBB TEHFLB, BABBISTBB-AT-LAW.
LONDON:
WILLIAM CLOWES AND SONS, Limited,
27, FLKET STREET.
1885.
87745 Digitized by Googk
PURCH/SE
0CT2O 111
JUV
LONDON:
PRTMTBD BT WIIXIAM CLOWRS AND SONS, UVITltD,
STAUFOBD ^EBBT AND CHAKIBO 0B08S.
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PREFACE,
The author of the reports contained in the first part (pp. 1-229)
of this volume was Sir William Burrell, Baronet, who, as Dr.
Burrell, practised as an advocate in the Ecclesiastical and Admi-
ralty Courts in the middle of the last century. He was bom in
1732 and died in 1796 ; was a Fellow of the Royal Society and
of the Society of Antiquarians, a member of the College of
Advocates, Chancellor of the dioceses of Worcester and Rochester
Member of Parliament for Haslemere, a Commissioner of Excise,
and author of the Burrell MSS. in the British Museum, a work
well known to Sussex antiquarians.
The reports are contained in two volumes: (1) a folio, let-
tered * Admiralty Cases,* and (2) an octavo, lettered * Practice
Abridged.* The former contains the instance and other cases
(pp. 1-153), of this volume ; the latter contains, together with
other matter, the Prize Cases (pp. 164r-229, infra). The Cases
and Opinions (pp. 251-401, infra) are selected (except where
otherwise stated) from a collection in the handwriting of Sir
William Burrell contained in a folio volume, lettered * Eccle-
siastical Cases.' Sir William BurrelFs manuscripts have been
reproduced in these pages verbatim, the old spelling — curiously
erratic in the case of proper names — being retained. For per-
mission to publish them I am indebted to the kindness of Sir
Walter Burrell, Bart., M.P., in whose library at West Grinstead
Park, Sussex, the originals were discovered.
The sources from which the rest of the matter contained in the
following pages has been collected are indicated in connection
with the various subjects. They are mainly the Books and
Records of the High Court of Admiralty and of the Court of
a 2
It
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'^ •-» 'V;
iy r i^'^-^ •[^^:\' ;PR'BFACE.
>,Uie Jtiilge^ D^egaj^s, the ancient Court of A^ppea^ from the
.;0t^iralty; Tl^^ books and records (of which some aceount is
glveJJun/m, j^/^l), together with, a large collection of note
t>ooks^ .papers, and * other documents relating to Admiralty^
*iDlitters, are" now deposited in the Eecord OfiSc^, where they
have at various times been transmitted* fhmi tbe Tower of
London and the Admiralty Eegistry. For access to this col-
lection I am indebted to the kindness of the o£Bcials of the
Becord Office and to H. A. Bathurst; ^sq.^ Begistrar of the
Admiralty Division of the High Cotirt of Justice.
In the absence of any published Admiralty reports of earlier
date than the end of th§ last century, it is hoped that this
compilation may be not without interest to Admiralty lawyers.
K. G. M.
12, Stone Buildings^ Lincohi*8 Inn,
SUt July, 1885.
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TAJiLE OF CASES.
PAC(B
PAOB
Adams v. Crouch .
110
Brown v. Kenyon .
30
Adventure, 'ITie, and 'I1ie Supply
288
BrowQ V, Scott
312
Alexandria, ITie . " .
167
Cargo ex The Parker, De La
Alstrom v, Houttuyn. The Suc-
Fountaine v. The
306
cess • • . . .
310
ex The Vine Grape, Han-
Alwinv. EaglesfieW.
287
sen v. The .
281
Amity's Desire, The
331
Carrington, The
167
Ann and Mary, The, and The
Catherine, Waterhouse v. The .
259
Sumiyside ....
325
Chance, The . . .
167
Ami of Mostein, The
2G3
Chester, The ....
166
Arc en Ciel, The " .
171
Clarke v. Bird. The Marquis of
Arnold V. Williams .
312
Granby ....
324
Augusta, The
167
V. Lynch. The Endeavour
•
•
and The Penn
325
Baker v. Malin. The Hunter and
V. Scattergood. The Ware-
The Amity's Frieud*hip
322
well and The Susan .
243
Ball v. Bright
303
V. The Royal Duke .
17
Ballam v, Larwi k. The Swan.
284
V, The Fairfield
252
■Bartlett v. Cotton .
312
Clegg V, Thompson .
312
Bawler, The ....
166
Clift V. Davis ....
99
Beaver, The ....
165
Constanza, The
161
Beckham v. Chapman. The Little
Cortis V. Hart .
312
Betty and The Jonas .
270
Cowton V. Cock. The Willing
Beggars' Benison, The
167
Mind and The Henry .
298
Bennet v, Buggin .
24
Cuthbert v. Kelhxik
312
Betty, Frost v. The .
315
Cutler v. Wright. The David and
Bird V. Clarke. The Marquis of
Joseph ....
299
Granby , . » .
324
Bivin V, Dixon
312
Dale v. Hall. The T Aurel and The
Blessing, The, and The John and
Houghton ....
323
Sarah. . .
305
David and Joseph, The .
299
and The William
Davis V Rofcrh
20
325
and John . . .
294
J^CaVlO V. XIV/V\ U ...
Day V. Walters. The Elizabeth
Block V. Hopton
319
v. Wolfe
88
Boon V. The Fordwich .
315
De Kromment v. Chevalier, The
Bnggs V, Egerton .
312
Young Ruijter and the Union
321
Brooke u. Stradtlauder
262
De La Fountaine v. Ofergo ex The
Brown v, Bolington .
312
Parker ....
306
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VI
TABLE OF CASES.
PAGB
Dick V, Edwards . . .312
Diligence, The, and The Soiihia 825
Dixon V. Ward ... 53
Dolphin, The . . . .181
Dorothy, Fell V. The . . 9
Dove V, Masters. The Elizabeth
and The Eleanor . . . 271
Dragon, The . . . . 189
Drew V, Hardwicke. The Pearl 312, 315
Duke of Dorset, Th3 . . 316
Duulop V. Proceeds of The Nep-
tune 97
Eleanor, The, and The Wilhel-
mina ..... 313
Eliott V. Lister. The John . 320
Elizabeth, The . . .325
. . .351
Elizabeth, The, and The Friends'
Goodwill . . . .298
The Eleanor 271
Endeavour, The, and The Penn 325
Ewbank v. Milbonme. The Pro-
vidence and The Charity . 267
Ewer V. Thirkettel. The Rose . 310
Fairfield, Clarke v. The . . 252
Fairless v. Thorsen . . .130
Faye V. Graham. The Three Re-
lations and The Britannia . 331
Feavour v. White. The Rebecca 266
Felicity, The . . . .175
Fell V. The Dorothy . . 9
Fisher V.Webb . . .312
Fletham v. Godfrey. The Eliza-
beth and The Friends' Goodwill 298
Fordwich, Boon V. The . . 315
Fortune, Robinson v. The. . 55
Fortuyn,The . . .175
Four Brothers, The. ' . .166
Fowler v. Living. The John and
Mary . . . .302
Frederick, The, and The Felton 299
Freemason, 1'he ... 55
Friend's Goodwill, 1 he, and The
Peggy . . . .328
Frost v. The Betty . . .315
General Amherst, ITic • . .167
Gibbons v. The Susannah . . 314
Gibson v. Chapman. The Satisfac-
tion and The Blessing . • 315
Gold V. Southwood . . .242
Gosfright v, Luogoletti . . 278
Grace, ITie . . . .333
Grand Duke of Tuscany, The . 188
Greyhound, The . . .167
. . .189
Groat V.White . . .312
Gull V. Carswell. The North
Lyon and The Phoenix . . 295
Halls V. An Anchor . . 281
Hannibal, The . . .167
Hansen v. Cargo ex The Vine
Grape . . . .281
Hanson v. Court . . .312
V. Godfrey ... 303
Harbyn v. Berry. The John and
The Thomas . . .235
Harper v. Gravenor. The Lamb
and The Adventure . . 251
Hazard, The . . . . 170
Helena, The . . . .190
Holland v. Proceeds of The Royal
Charlotte . . . 62,76
Hoop, The .... 184
Hope, The . . . ,157
Hope de Hamburgh, The . • 248
Hopewell, The . . ,247
Hughes V. Saunders . . 312
Hunter, The, and The Amity's
Friendship. . . .322
Industrie, The
Ittbella, The .
173
X91
James, The, and llie Swallow . 319
Jamieson v. Merry . . 1, 118
Jan and Anthony, The . . 322
Janet, The Gratava and The . 337
Jasscll^The . . . .167
Jeremiah, The, and 'ITie Provi-
dence 282
J"sus, The . . . .164
John, The . . . .320
.... 334
John and Mary, The . . 302
John, The, and The Thomas . 235
Johnson v. Moody . . . 312
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TABLE OF CASES.
VU
PAGE
PAOK
Jones V. Aslibumer
. 312
Molly, The .... 167
Jones V, Irvin
\ ai2
Morris v. Henchman. The New-
Joseph, The .
. 164
foundland Merchant . . 249
Juffrow Titia, The .
. 176
Munday V. The Mary . . 284
Kichener v, Gocklin. The Bless-
ing and ITie William & John 294
King, The v. Barnes . . 64
V. Lane . . 14, 80
Kmg William the Third, The . 183
Eirwan v. Underwood. The Two
Brothers and The Friends'
Adventure .... 297
Lamb, The, and The Adventure 251
— — ^— and The Rose and
Crown . . . . 254
Langwill t;. Boss ... 15
Laurel, The, and The Houghton 323
Lee V, Eous .... 318
Little Betty, The, and The Jonas 270
London Merchant, The . . 339
Lord Holland, Meeke v. The . 144
Louisburgh, The . . .167
Lovely Ann, The . . • 337
Lutwidge V. Vatable . . 301
Mackenzie v, Ogilvie . 124, 134
V. The St. Andrew 124, 134
Maria, The . . . .164
Marquis of Granby, The . . 324
Mars, The . . . .167
Marsingill v. Taylor. The Ad-
venture and The Supply . 288
Mary, The, and The Rebecca . 290
Munday v. . ,284
Tills V. . . 284
Mary of London, The. Snary v.
Heath .... 252
Mary of Poole, The, and The
Rebecca . . . .264
MascoU V, Scaife ... 3
Mason' v. Johnson. The Jere-
miah and The Providence . 282
Meeke v. The Lord Holland . 144
Merry r. Jaibieson . . 1, 118
Milton V. Maundrell. The Bless-
ing and The John and Sarah . 305
Miriam and Anne, The . . 166
Neteon V, Durham. The Ann
and Mary and The Sunnyside 325
V. Fawcett. The Reso-
lution and the Langton . 332
Neptune, The . , .335
■ — , Dunlop V. Proceeds of
The 97
Newfoundland Merchant, The . 249
Newman v. Croft. The Lamb
and The Rose and Crown ' . 254
Noden v. Ashton. The Mary and
The Rebecca . . .290
North Lyon, The, and The
Phoenix . . . .295
Nostra Senora de la Luz, The . 47
del Carmen, The . 164
del Rosario y San
Antonio, The . . .175
della Miseracordia,
The 160
Nostra Sta. de la Conception, &c.,
The 172
Oratava, The, and The Janet . 337
Orrory, Pilkington v. The . 253
Owen V. The Providence • • 13
Papilloti V. Hyde . . .266
Pearl, The . . . .316
Petersfield, The, and The Judith
Randolph . . . .332
Petronella, The . . .311
Phoenix, The North Lyonand The 295
Pigg V. Gouldsburg. The Frede-
rick and The Felton . . 299
Pilkington v. The Orrory . . 253
Pillans V, Sherburne. The James
and The Swallow . . 319
Poderoso, The . . .162
Princess Mary, The . . .167
Providence, Owen v. The . • 13
The . . .330
and The Charity 267
and The Hope-
well 280
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VUl
TABLE OF CASES.
PAGE
Ravens, The . . . .182
Rawlinson v. Pagan . • . 269
Rebecca, The . . . . 266
Redp ith V. The Vrow Maria . 334
Reed v. Wellford. The Thomas
and Jane and The Isabella . 308
Rennen v. Humble. The Provi-
dence and The Hopewell . 280
Resolution, The, and The Langton 332
Rex v. Sibbernes . . .281
V. DelaVal . . . 248
Rose, The . . . .310
Royal Charlotte, Holland v. Pro-
ceeds of The . . 62, 76
Royal Duke, Clarke v. The . 17
Russell V. Hayes. The Upnor
Castle . . . .307
Salt Pond, The
San Antonio e Almop, The
San Joseph, The
220
176
165
186
162
312
162
160
160
San Vincent,' The .
ganders v. Garrett .
Santisdma Trinidad, The . ' .
Santo Crucifixo, The
Santo Nicola, The . ' . ' .
Satis&ction, The, and The Bless-
ing 315
Scorsby V. Hutchinson . .70,86
Sea Flower, The . . .227
Sea Port, The. . . .206
Sharp, "The . ' . . .225
Snary v. Heath. The ^ary of
London .... 252
Snelle OoopeV, The . . .206
Sophy, The . . . .166
Spa, The .... 220
Speedwell, The . . .210
St. Andrew, Mackenzie V. The 124,134
St. Antonio del Padua, The, cUiaa
The Dragon . . .189
■ . . 174
St. Jacob, The * . . .160
St. John the Baptist, The . 279
St. Juan, The ... 174
de Luz v. Pococke . 5
St. Sebastian, The . . .156
Stadt Rotterdam, The . . 220
PAOB
Stadt Flansberg, The . . 226
Stoker ti. Hutton . . .328
Stringer v. Brown. The True
Love and The Hopewell . 275
Strong v. Teesdale . . .269
Succtss,The . . . .310
Bonadventure and
The 269
Summers v. Elphinstone . . 103
Susan, The .... 343
Susanna Margaretha, The . 102
Susannah, The, Gibbons v, . 315
Sutherly v. Manchester . . 325
Swan, The . . . .284
S Winnie v. Tinker . . .139
Taylor v. Heme
V. Thompson
287
302
336
Thames, The
Thomas and Jane, The, and The
Isabella . . . .303
Thompson v, Mahon . . 312
Three Brothers, The . . 336
Relations, The, and The
Britannia * . ' . . . 331
Thurloe, The . * . . .227
Tills V. The Mary ... 284
Tomlinson v. Voguel. The Eleanor
and The WUhelmina . . 313
Touraine, The . . .169
Trew t;. Peirce. The Mary of
Poole and The Rebecca . . 264
Trial, The . . . .338
Triton, The . . . .167
Trois Amies, The . . . 187
True Love, The, and The Hope-
well 275
Turin, The . . . .318
Two Brothers, The, and The
Friends' Adventure . . 297
Tyrell,The .... 166
Union, The . . . .167
Upnor Castle, ITie . . .307
Vier Gebroeders, The . . 159
Vigilante, The ... 183
Vine Grape, Cargo ex, The . 281
Virgin del Rosario, The . , 185
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TABLE OF CASES.
IX
Voreigtigheit, The .
Yriendschap, The .
Vrow Dorothea, The
Vrow Maria, Redpath v. The .
Warewell, The, and The Susan .
Waterhouse v. The Catherine .
Wemam v. Churchwood .
Wildman v, Blakes, The Peters-
field and The Judith Kandolph
William and Mary, The .
PAOE
PAGE
192
William de Yarmouth, The
,
250
155
Williams v. Lovie .
,
312
810
Willing Mind, The, and
The
334
Henry
.
298
Wood V. Germain. The Petro-
243
nella ....
,
311
269
Wright V. Everess .
.
312
260
Yong, Peter, The .
.
184
332
Yong Vrow Adriana, The.
.
178
167
Yong Weybe, The .
.
177
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CASES
DETERMINED BY THE
HIGH COURT OF ADMIRALTY
AND UPON APPEAL THEREFROM.
DELEGATES.
MEKBY V. JAMISON & Co. (1). i^g^
Oostling. Dr. Wynne. Dr. ClarJee. '^'^^^'
Dr. Clarice.— Tk\a is an appeal from the High Court of Admiralty. On admiflrfon
The ship Urd Aman, whereof Mr. Merry is the owner, in April, tiorabUuft
May, and June, 1763, lay in Virginia, and the ship wanting repairs u?"^"^
the captain applied to my clients Jamison & Co. for £1000, to
be employed in refitting, victualling, and lading this ship for
the port of London. To secure the repayment, the master gave
my clients a bond of bottomry and bills of exchange on Mr.
Merry, the owner, which bond, as well as the bills, he refused to
pay. The ship arrived in August, 1763, having made consider-
able freight 17th September, 1763, action was entered, and a
warrant issued to arrest the ship, her tackle, &c,, in whosesoever
hands they should be, to answer my clients. Bail was entered
and It libel has been given consisting of nine articles, setting
forth that sometime in 1761 or 1762 the ship Lord Anson was
[(1) This and the following case are the preface above. For further pro-
No8. 25 and 3 in the small folio ceedings in Merri/ v. Jamison^ see
"Common Place Book" described in below, p. 118.]
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Jamibok.
APPEAL FROM HIGH COURT OF ADMIRALTY.
1764 freighted on a voyage to Quebec ; that she waa about 400 tons
^HsKST burthen ; that Mr. Woolcomb was sole commander, that the ship
lyeing in Bfampton Eiver, the master having no fixed credit there,
Messrs. Jamison & Co. supplied the captain with money to the
amount of £1000, to refit, victual, and lade her, else she could
not have proceeded safely to London; that for security the
captfidn made over the ship, taxjkle, &c., and gave a bottomry
bond ; the identity of the persons is pleaded, and the bill of
sale ; that in August, 1763, she made freight to the amount of
£1500 ; that Mr. Merry had been frequently applied to for the
payment, but had as often refused, and the motion was that he
might be compelled to payment by sentence of the Court. This
libel the Judges below admitted, from which admission GosUing
has appealed.
Dr. Wynne. — I am council for Mr. Merry. 17th September,
1763, action was entered in £2000. September, 1763, he bailed
the ship, &c. ; 4th November, 1763, the Judge of the Admiralty
admitted the libel, assigned to 22nd November, when Mr.
Jamison prayed to be heard on his petition. That this was a
grievance, and could not be appealed. The answer is it would
be an irreparable damage, for we plead they did not take such
previous steps as ought to be and always are taken abroad to
empower the captain to hypothecate. There was no schedule of
the repairs, no advice of the ofScers and mariners, or certificate
under their hands that the ship could not proceed on her return
till those repairs were done for which the money is stud to have
been borrowed, and that the Judge unduly admitted the libel,
though the hypothecation was not such with the consent of the
officers and mariners, and without which no master or captain
has power to execute an hypothecation bond.
Assigned for Serjeants' Inn.
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APPEAL FEOM HIGH COUBT OF ADMIBALTY.
MASCOLL V. SCAIFE. 1765
^rd8ess, Ea$U
Dr. Wynne. Fuller. Orespigny. Dr. Harris. Term.
This cause was in tiie first instance determined at Nova Scotia Q. Oortifloate
on a seizure made in 1758 by his Majesty's ship Vulture, Captain ib the appeal
Scaife, of the schooner Love, MascoU, &c., owners, for illicit, trade, a^^tei?
From that sentence there was an appeal, which has been pro-
secuted, but the certificate has been discontinued for two years.
The question therefore is. Whether the Appeal is not to be con-
sidered deserted by reason of a treaty of agreement which was on
foot between the proctors of the contending parties.
Crespigny appeared and alledged that he knew nothing of the Treaty of
cause till within these ten days; for that it had been under
treaty of agreement, which is now at an end, and prays that
Fuller may be assigned to extend his Protest.
Fuller alledged there was no cause before the Court by reason of
its being deserted for two years, and that he knew nothing of the
agreement. The affidavits of Captain Scaife and his agent, Mr.
Manger, were read, stating that they knew not, or had given
orders for entering into such treaty of agreement. An affidavit
of ... . was read, which set forth that he knew there had been
such a treaty on foot.
Dr. Harris. — Their affidavits do not contradict ours, for the
agreement was between the respective Proctors (Mr. Crespigny,
senior, and Mr. Farrar, who are both dead), they alledging it in
the continuation ; and on this account Crespigny is justified in
doing nothing for two years, and the treaty being now broke oiBf
he has a right to proceed in his appeal. The Inhibition, Monition,
and Certificate not being continued is no reason for decreeing the
appeal to be deserted. If the Proctor's Protest is bad he must
appear. There is no use in continuing the certificate from Court
Day to Court Day. The repetition of such assignation would be
nugatory, and no practice can be right which is not founded in
reason. It was so determined by the Lords, even when there was
B 2
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APPEAL FKOM HIGH COUBT OF ADMIRALTY.
1765 no certificate at all, in the case of Captain Crooshanks, 1751, upon
llisooLL ^^ appeal from Gibraltar, the Monition and Inhibition being re-
ScAiPE turned without a certificate ; and though Sir George Lee spoke
No certificate, an hour with respect to the practice, Lord Granville asked whether
the effect of the process was obtained, and being answered in the
afSrmatiye, said a nicety of practice ought not to be regarded in
cases where there was a sufficient constat; the purpose being
answered was all that was requisite, and that the minutiaa of
practice was not to overset essentials.
Dr. Wynne. — The L&ve was seized in 1758. The monition was
not returned till 1761, and the certificate was continued for some
time ; but since 1763 nothing has been done in the cause ; and
there being no continuations, it must be considered at an end.
The Doctor would willingly take it up, on the reason of the practice
at large. I may agree with him that no practice should be re-
ceived which is not consonant to reason ; for this of continua-
tions is highly reasonable, as I apprehend. It puts the Court in
mind that such a cause is before it, and the Court has thereby an
opportunity of calling it on. But for want of proper continuations
the Court is quite uninformed what causes stand out. A cause
sleeps and may rest for seven years, and then the parties may take
it up at pleasure. The treaty should have been alledged and
taken down in the acts of Court; it is not sufficient for the
parties only to be satisfied whilst they are in treaty, and
using the authority of the Court as a bugbear to frighten each
other ; but it is for the honour of the Court that causes should
not appear in their books many years, which must be the case if
the continuations are not regularly made. By Clarhe, Praxis
Curias Admiralitatis, tit. 66, De peremptione Jvstantias, appeals
must be finished within three years. Besides, as to the pretence
of an agreement, affidavits of the principal persons interested
have been read saying they are ignorant of any such agreement.
Indeed, one person swears he knew there was a treaty on foot.
But the Proctors were not authorized, and could not of their own
accord enter into such agreement. Fuller alledges he knew of no
such accommodation. I say, however, there might have been a
treaty on foot between the parties, yet the reason subsists for
continuing the cause that it may appear in book what the motive
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HIGH COURT OF ADMIRALTY,
was for delaying the conclusion. It is a justification of the 1765
Court to the world. It is a satisfaction to the Judge. In this masooll
case the hardship is very great. It is eight years since the gQ^ij^
sentence. Mr. Farrar died in 1762, and nothing has been done
since. Upon the whole I hope you will be of opinion the cause
is deserted.
N.B. — Mr. Bishop, Deputy Eegister, was asked by the Judge
how the practice stood with respect to certificates ; who said, all
certificates were continued of course in the Admiralty Court
Sir Thomas Sdlisbwry decreed the cause to go on, but gave no CauBe to
costs of the Protest.
St. JUAN DE LUZ v. POCOCKE (1). , , i^^^
PRIZE. ^^'^
Fotmtain. Tyndall.
Dr. Wynne. Drs. Harriot cfe Harris.
Dr. Marriot.-^ThiB question arises on the frame of a vessel 9* ^*^«
Court junfl-
one-third built in a yard at the Havannah, taken by Lord Albe- diction over
marie and Sir Geo. Pococke. Don Bartholomew de Montes and a vewelMie-
Don Josh. Vettia claim two-thirds of the vessel ; they entered ^i^ Tt^^'*''
their claim the 22nd May, 1764, two years after the capture, considered as
3rd July Tyndal appeared under protest to the jurisdiction of and bo falls
this Court — that not being afloat at sea, it must be considered as ^ capitnla^
naval stores, and so falls under the 4th article of the Capitulation ^^^ ^
of August, 1762. This Protest is strengthened by the Agent's
Affidavit, which sets forth the claimants' purchase of the materials
at a public sale, which proves they relinquished their claim, and
is the ground of our Protest.
Dr. Wynne. — This ship was on the stocks ; two-thirds belonged
to merchants at the Havannah and one-third for a merchant in
Old Spain — Don Francesco" Montes. After the Capitulation,
[(1) The following thirty-two cases volume " Admiralty Cases " mentioned
(pp. 5-153) are contained in the folio in the preface.]
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6 HIGH COURT OF ADMIRALTY.
1766 Mr. Eenyon, as agent for Lord Albemarle^ seized her as prize, and
St.Juamdb without proceeding to adjudication put her up to sale. The
^^^ claimants, to preserve the ship in their possession, purchased her
PooocKx. of Kenyon ; the huU, long boat, and yawl, for 1100 dollars, and
2000 dollars for timber. It was agreed they should be allowed
to bring down wood from the forests to compleat the ship. Not-
withstanding this, the same day, viz. 23rd November, 1762, to
preserve their right, they entered a Protest against the sale and
agreement, as being entitled under the 11th article of the Capi-
tulation, they never meant to relinquish their claim, but to pre-
serve the ship entire for their own use. The timbers which by
the agreement they were allowed to bring from the woods to finish
the vessel were afterwards seized. They claim the two-thirds as
not liable to seizure, and which they insist ought to be restored
to them, as inhabitants of the Havannah, by the 11th article of
the Capitulation. The agreement is annexed to the claim.
Dr. Marriot — The ground of our Protest is that this ship was
not afloat. The transaction was in the dockyard, therefore must
be considered as relative only to naval stores at land. Your
jurisdiction comprehends only ships and stores taken at sea. It
is only a frame or skeleton of a vessel about one-third planked.
Another objection is that it is become actual money, which you
cannot restore. The purchasers have transferred their right to
the captors. Cm bono make us appear, if the merits are with us ?
Where the question is clear the Lords never put the parties to
expense on nicetys. The 11th article relates to household goods
and moveables, that they might be preserved from the rapine of
the soldiers. They have taken a valuable consideration for their
rights. In the case of the Constcmza (1) the Lords determined it
came under the Preamble of the Capitulation.
Dr. Harris. — The question is whether any goods taken on shore
by the captors are to be condemned in the Admiralty Court. K
they were on the water the claimants have no interest, as they
would then be liable to be taken. All the merchant ships in the
harbour have been condemned here. These people have not an
interest to pray a process if she was afloat. All ships, whether
they were the property of the King of Spain or Spanish mer-t
[(1) As to this case see p. 161, infra.']
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HIGH COUBT OF ADMIEALTT.
chants, vested in the captors by the Capitulation. The case of 1766
the Constanza was, whether a ship belonging to an inhabitant was Sr. Juan dk
indnded in the Capitulation ? The Lords determined it was not. ^^^
Dr. Wynne. — The gentlemen in one part of their argument Pooookb.
have admitted as much as I want to show. Their Protest should
be overruled. They cite the Preliminary to the Capitulation.
They admit that we are under the seane predicament as the other
ships were in the harbour. Ton will not go into the merits till
the evidence is before you. The single question now is whether
this is a matter of decision for the Court of Admiralty ; whether -
the Protest ought to be overruled. They insist it was not within
the jurisdiction of the Admiralty at the time of the Capitulajiion«
She was then what the seamen would call a ship on the stocks.
To deny the jurisdiction, because she was not afloat, is a greater
restriction on the Court than I ever knew. There are many
cases where the Court takes notice of contracts not arising merely
on the water. May not a shipwright sue here for his wages, on
account of labour or materials expended in building ships at
Woolwich. It was admitted to be law that he might: BoIVb
Abr. 533 (1). A shipwright may sue for his labour in building a
ship at W., and Prohibition will not go. If this is the case of a
yard in Kent within a few miles of London, a fortiori it will hold
in a foreign country. There is an instance of it at the Havannah.
The assignation on Monday, 28th March, 1763, stood as follows :
Tyndal^ — ** Our Sovereign Lord the King against 170 chests or
eases of sugar, 100 bales of tobacco, 957 serous of snuff, 50,000
logwood in billet, and other goods, part of the goods belonging
to the King of Spain, delivered up in consequence of the Capitu-
lation of the Havannah, against two of the Spanish Prizes and
Transport Ships." The 4th article states, " That all the artillery,
stores, &c., belonging to his Catholic Majesty, and all artillery
without reserve be delivered up." It is clear the Answer can't
refer to more than is contained in the Proposition. The words
' Catholic Majesty ' are left out, but they must be referred to.
From thence the articles go to the private subjects. The 11th
article was misrepresented by the King's Advocate when he con-
fined the meaning to household goods and moveables only. No
[(1) Semble Tosher v. Qale,']
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8
HIGH COUET OF ADMIBALTY.
Ldz
V.
POOOGKI.
1766 man ever doubted that by this article every private merchant
St. Juah jm having all the effects in his warehouse preserved to him. It is
objected our application is very late; you will consider the dis-
tance of the Havannah from home. The peace was not concluded
till February, 1763. After the Capitulation a Claim was entered
at the Havannah by the Claimants for their property against the
Agent. It is not a right fictitiously set up. It is very natural to
suppose they have tried to adjust the claim in another manner.
The King's Advocate objects because you are proceeding against
a sum of money. The Act of Parliament directs a sale on
appraisement. The ship and cargo might otherwise perish, but
when converted into money is permanent. This is the constant
proceeding in the Prize Court.
Dr. Marriot. — The cases quoted by Dr. Wynne are in the
Instance, not in the Prize Court It is necessary to have snuff,
sugars, &c., declared Prize Groods, to import them into this
country. The Assignation don't shew where the goods were taken.
The 4th article stands as an exception to the 11th article. Sums
of money are condemned when you originally decree. The dis-
tinction is, you turn the ship and cargo into money ; there the
party himself turned it into money.
Dr. Harris. — If a ship is on shore it is not considered in the
light of a ship. A mate, a master, has been refused liberty of
sueing here. Tou have not an original jurisdiction. It is by
sufferance in favour of seamen, because several may be consoli-
dated in the same sute. The 11th article was calculated to pre-
serve the inhabitants in their private possessions. Oforio claimed
the Constanza as private property ; he was allowed to be an inha-
bitant, but all ships in the harbour, the private property, were to
belong to the captors ; so that whether these stores were public
or private property, they were the captors'. It don't appear the
goods mentioned in the Assignation aforesaid by Dr. Wynne were
not taken out of the ships in order to lighten them, to take guns
on board to defend the harbour.
Protest ill Sir Thomas Salisbury, Judge. — I think the Protest is ill-
Tyndala^ founded and assign Mr. Tyndal to appear absolutely — which
signed to y. did, and prayed a Monition.
appear ' ^ "^
absolutely.
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HIGH COURT OF ADMIRALTY.
FELL V. THE DOKOTHY. ^66
Trin. Term,
WAQES. Bye Day.
Bargrave. Stevens.
Drs. Colly er and Wynne. Drs. Harris and Calvert.
Dr. CoUyer. — This is a Cause of substraction of wages brought Q- Whether
^ 1 i^ mariners hir-
by . . . Fell for three guineas for a voyage from Shields to Chat- ingthemaeives
ham. Fell and Carmichael informed . . . Maud, the captcdn of the fromShieidsto
Dorothy, when he hired them, that they were mariners in the bilsk (but*°^
Greenland service, and that if he intended to continue at Chatham ftating that as
they were
and did not return in proper time they could not stay. Maud engaged in
said he hsui a wharf of his own, that he should deliver his coals serncethey'
without delay and return directly. I mention the circumstance t^^ o^tS
of their engagement in the Greenland service as mariners because *ime)» having
they give a bond, as such, to repair on board when they are re- only half their
quired so to do ; that they are therefore obliged to be within call tha^Jj^unt
about the middle of January. The Dorothy sailed from Shields ^ ^^^^^^^^
the 2nd, and arrived at Chatham the 7th of December. A fort- wages.
night after they delivered the cargo, took out the old bowsprit,
and put in a new one ; then Fell & Co. applied to Maud to sail
back to Shields pursuant to their agreement, which he refused to
do. Fell & Co. continued on board from December 21st, when
the cargo was delivered, till January 7th, when they again applied
to the captain to return, but he refused* The time being almost
expired, on which they were to repair on board the Greenland
ships to save their Bonds, they were obliged to leave the Dorothy,
the captain whereof knew they were in his power, and must either
desert, as he terms it, or forfeit their Bond. In January, 1762, the
Action was entered, bail given, and a Summary Petition pleading
these circumstances. 3 Sep. Hil. T. 1763, Stevens gave an allega-
tion stating that Captain Maud gave more wages than the other
vessels in the coal trade did ; that on December 9th he began to
unload, that he was obliged to sell part of his cargo at Chatham
at an inferior price, having received some damage which required
repair, which he employed some workmen to do, but could not
get them to begin till after the Christmas holydays ; was there-
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10 HIGH COURT OF ADMIRALTY.
1766 fore obliged to postpone the repairs till the cargo was delivered,
Fell and on that account she was not ready to sail till the latter end
TfflB ^^ January ; that the ship arrived at Shields February 5th ; that
DoBOTHT. the desertion of Fell & Co. January 7th prevented the ship going
out. He admitted Fell and Carmichael were engaged in the
Greenland trade, and had given Bond as they asserted, but
alleged the Greenland ships don't sail till the middle of March on
account of bad weather. The witnesses speak to the repairs, &c.
You will observe Maud has made no tender. If the Court should
think we are not entitled to wages to Chatham and back to
Shields, we are at all events entitled to our wages for the time
we actually served.
Dr. Harris. — Kestated the case, admitting Maud to be captain
and sole owner of the Dorothy.
Dr. CoUyer. — It being admitted there was a contract, the ques-
tion now to be enquired into is, the terms of such contract. The
witnesses prove they were engaged in the Greenland service ; as
such, they were privileged, protected from being pressed, and for
greater certainty retained. If the Dorothy could not have re-
turned, the master would readily have said so and offered them a
recompense for the service they had done. He states his loss :
that is totally immaterial. It seems the ship wanted a bowsprit
and ballast. Why did he not bespeak them? Nothing was
begun till he knew it was impossible for the work to be finished
in time to sail according to agreement. When the sailors apply
to the captain he refuses to see them. It was his own negli-
gence that he did not begin to repair his ship. If he had
begun in time he might have returned with the other ships.
The single point is, whether there is not sufScient evidence to
induce your belief that the captain brought the sailors into this
dilemma designedly ?
Dr. Wynne. — W-e have established the point that they were
engaged in the Greenland service as mariners, so protected by
several statutes. Whatever service they entered into, they were
obliged to take care their engagements should not be incom-
patible with that. One witness says Maud promised to return
before Christmas Day; another deposes he engaged to return
immediately. The ship was unladen in a fortnight after their
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HIGH COURT OF ADMIRALTY. 11
arrital. We are told it was as much the interest of the master 1766
to return as of the men. We could join issue on that point. fell
He had a wharf and a wife and family at Chatham ; the weather ,^
was bad; the cargo unladen; he might not want another; Dobothy.
possibly he might be desirous of driveing his men to desert^
that he might get the voyage gratis. He has failed in the
proof of the material part of his plea^ i.e., the damage. He says
the bowsprit was decayed; it might be so; but the men are
not hired to be on board whilst the ship is repairing, without
proof of the damage being sudden and the immediate repairs
necessary. The repairs might have been as necessary a year
before ; if so, they might have waited a little longer. But it is
conceiyed that a ship coming to Chatham must wait for ballast
being dug. Maud created every possible delay, and then took
advantage of it. The men found it to no purpose their trying to
see the captain and to bring him to terms ; therefore were obliged
to return without him and leave the ship.
Dr. Harris. — The men were hired for the run, and therefore
were obliged to take it for better for worse. We all agree as to
the time. It is in evidence he could not sail till the bowsprit
was in, before which the ballast could not be put aboard. He
employed men to dig chalk for that purpose, who were inter-
rupted by the frost. He used his diligence to procure workmen
in the different branches without success. The other ships were
not detained by accident. There is not a word of their being
engeLged in the Greenland service mentioned in the contract with
Maud. There is not a tittle of evidence to shew the Greenland
ships sailed on any and what particular day. But supposing they
entered into the Bonds, as alleged, will that justify their deser-
tion ? It is objected the captain would not see them. He was
right to refuse to see them when he found they were mutinously
enclined* It was the captain's interest to return expeditiously ;
he used his diligence to do so. The behaviour of the seamen is
highly improper and their desertion inexcusable.
Dr. CaJvert. — We insist the plaintiffs have no right to the wages
claimed. The question is, whether their quitting the ship is justi-
fiable or ought to be termed desertion. The length of time they
were detained is no excuse when they were engaged for the run.
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12 HIGH COUBT? OF ADMIEALTY.
1766 unless they can shew it was unreasonably long and owing to the
Fell captain's negligence. We shew he could not return sooner.
T^ Another ship returning is no proof that we were able to do the
DoBOTHT. same. There is no doubt but that in point of time we might
have made two voyages, but unavoidable delay prevented. I
believe sailors in the Greenland trade must return at a particular
day ; they should have shewn this was the precise time they were
liable to be called on. The witnesses say there is no certain time ;
if so, there is no direct obligation. Their obligation to go to
another place will not supersede a subsequent obligation. There
is no proof the captain agreed to return at a stated time. If there
is any dishonesty, it is on the part of the mariners for entering
into a contract they were unable to perform. The captain was
unacquainted with their situation . . . says he was engaged with
the others in the Greenland service, yet remains here in June
If they were under an obligation to go, he was so too, and could
not have been here to give evidence. The captain, in order to
expedite his return, sold part of his cargo to a disadvantage
before he reached his port of destination.
Ihr. Collyer. — Did the captain return immediately pursuant to
his contract ? If he did return as soon as possible, I would not
say a word more. The leaving a ship is not necessarily to be
termed desertion. Suppose the captain was to swear he would
blow the ship up, would you deem the sailors deserters for
quitting her? Desertion implies .... The men soUicited to
return. Would a man wish to return in a leaky ship ? If the
captain knew he could not possibly return, he should have called
the crew together, like an honest man, and told them so. I dare-
say a bowsprit may be repaired in a day. They have not set
forth the necessity of ballast. The manifest intention of the
captain was to stay. How long must the men wait ? Why should
you believe the Greenland ships do not sail till March, when the
stipulation is made for January ?
Dr. Wynne, — Our witnesses speak positively to no work being
done from December 7th to 18th. Millar says they began to
unlade a week before Christmas. The damage don't appear
great. The men went to the captain to remonstrate against his
dilatoriness, yet he refused to see them.
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HIGH COUKT OF ADMIRALTY. 13
Sir Thomas ScUishury, Judge. — This is a short case. There are 176G
but few witnesses examined. I am surprised the agreement is full
not more explicit. There is no proof of the precise time when ,j^^
they must return to go on board the Greenland ships. A bow- Dorothy.
sprit, though ready, can't be put in without the assistance of
a smith and plumber. Ballast is necessary for all empty ships.
They don't appear to have told Mr. Maud they must go at a
certain time. Why did they not remonstrate before that time
came? The men appear to have behaved well during the
voyage. Some captains try to shuffle oiBf the demands of poor
seamen. The law never meant to define desertion to be when-
ever a mariner quitted the ship. I think the mariners have not Wages de-
or66<l for hftlf
performed the run, but that they are entitled to their wages for the voyage
half the voyage. I shall give costs on neither side. ^^ ^"* ^
OWEN V. THE PEOVIDENCE. nee
Trin. Term,
COLLISION.
ON ADMISSION OF AN ALLEGATION.
Dr. Harris. Dr. Wynne, Phillips.
Dr. Harris. — Read the allegation of collision, stating that the q^ j^ thelibel
damage suffered by the William was owing to the wilfulness and fdmiflsible as
^ "^ ^ laid? Is not
obstinacy of the master of the Providence. tiie action
Dr. Wynne. — I am council for the owners of the Providence, ^^^^^^^^
Hopper, master, which was arrested with her full cargo on board.
You will observe the action is entered for £200, when by their
own shewing the damage amounts only to £4 13s. The usual
way is to arrest in double the sum. They don't appear to have
applied to the owner for making good the damage. The sute
has the appearance of being extremely litigious, and calculated
only to vex the opponent, who is obliged to give bail for the
whole sum laid (£200), though only £4 13s. is shewn. The action
is brought by a person who has given no bail. It is not given for
both owners ; till it is given by all the parties interested, we are
not regularly before the Court.
Dr. Harris. — If sufficient bail is given to stand the sute, it is
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14 HIGH COUBT OF ADMIKALTY.
1766 immaterial by what owner. As to the quantum, we did not know,
Owen "perhaps, at that time what damage was done; that will be a
rj^ suflBcient excuse for laying it so high. I don't know this Court
Pbovidbhce. has said any sum is too small to be sued for. If the sum is so
small, why don't they pay it ?
Sir Thomas SaHdyurj/, Judge. — The libel is in the common
form, and must therefore be admitted ; the application for pay-
ment and refusal being inserted.
KB. — The Kegistrar, being asked, said where an action is
excessive, it is moderated by the Judge on the application of the
defendant.
1766 THE KING IN HIS Office of Admiealty v. LANE.
Trin, Term.
; FOB INSULTING THE MABSHAL.
Crespigny. Alexander.
Dr. Harris. Dr. Wynne.
Q. Are the Dr. Harris. — September 28tb, an action was brought by the
missibieas mate of the New Elizabeth against the said ship. A warrant
^^^^ issued to Brough, the Marshal of the Admiralty, to arrest the
S£ud ship, which he did the same day, September 29th. Mr.
Bowden, finding the ship removed, asked the pilot, who had
presumed to move the ship when she was under arrest? His
answer was, he neitiier regarded the piece of paper shewn to hiiii,
nor the pewter affixed to it ; he did not value the iJords of the
Admiralty, nor the Trinity Masters. The Lords of the Admi-
ralty, being acquainted with the pilot's behaviour to their officer,
ordered Crespigny to exhibit Articles against him. Bowden has
made affidavit of these facts.
Dr. Wyn/ne. — I am council for . . . Lane, pilot of the New
Elizahethy who is articled against for a contempt. I would by no
means justify insolence of this sort, but I must object to the
admission of the Article, as it does not appear that Lane was then
the commanding officer. To be sure the Court will vindicate its
authority, but it will act in that manner which shall be least
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HIGH COUBT OF ADMIBALTY. 15
grieyons to the parties. The Article which states the mate to be 1766
on board don't state the captain was not on board. I will not thbKihg""
say the oflScer of the ship is to be obeyed preferably to the jj^
Court's orders ; but that circumstance will have its weight, if the
superior shall appear to haye given Lane his orders, and that he
acted conformably thereto in removing the ship from her station.
No' notice is taken whether the ship was bailed in the interim or
not. Contemptuous words are said to have been spoken; you
wiU consider the person who speaks, and that sea language is not
very polite.
Dr. Harris. — ^It is their business to shew by an allegation that
bait was given. Sea jokes are no excuse for such behavior. The
pilot avowed his removal of the ship and said he would carry her
away in spite of anybody. He has behaved with great disrespect
to two very respectable bodies.
Sir Thomas Salisbury ^ Judge. — I admit the Articles as laid. Articles ad-
mitted.
LANGWILL V. BOSS. 1766
IWn. Term.
HOSTAGE.
Drs. Karris and Wynne. Dr. CoUyer.
Dr. Harris. — Stated the case — that the Plaintiff had been sent Q. ShaU the
as a hostage to Bourdeaux for the ransom of the ship for [£]260 ; a^p^n i^^
that he had never been released, but continued still in prison at ^^^ ^^
Bourdeaux ; on that account that the Plaintiff had answered in- eihoil the Plea
he adiuitted ?
sufficiently ; that they offered the present Allegation to shew that
they had endeavoured to find Stoddard, but had not as yet
succeeded. To this Allegation certain exhibits are annexed:
Article 2 exhibits the Advertisements; 3 states Stoddard's
declaration of the facts, his giving a certificate and being satisfied
with Langwill's behavior; Article 4 exhibits the certificate of
said Joseph Stoddard, attested by Thomas Tate and John Crouch.
Dr. Wynne read the allegation.
Dr. Collyer. — The story as it is told is certainly very melan-
cholly, but there is a great difference between pleading and
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16 APPEAL FROM HIGH COURT OF ADMIRALTY.
1766 proveing. The question is not now about the fact as stated, but
Langwill the manner of proving it. Their term probatory is almost expired,
jj^'gg It is said one Dike, of Union Stairs, has often advertised for
Stoddard. The advertisement says " for their interest and advan-
tage." These words impute an inclination to hire evidence. The
story they tell the Court is very strange; that they can't find
their evidence. The gentlemen might have prayed our fuUer
answers, if they thought them insufiScient. Their present Allega-
tion can only be calculated for delay.
Dr. Harris. — We were to shew we had used our diligence.
Boss has been nine months giving in his answers. We were to
see them before it was necessary to give any plea or examine
witnesses. We plead the want of evidence to introduce the
captain's certificate. Stoddard was going from port to port ; he
was desirous of doing justice, acknowledged Boss to be his master,
and the plaintiff the hostage. Written declarations duly attested
will be admitted when you are satisfied we can't produce the
man. If witnesses to a will can't be found, the handwriting is
allowed to be proved. The attestation in that case is similar to
this. The same mode of proceeding is allowable in &vour of
liberty as in favour of testacy ; I hope you will admit the certi-
ficate to proof.
Dr. Wynne. — The Doctor admits my client's case to be of a
very favourable nature. The delay is occasioned by themselves.
The way of drawing answers is so qualified that they seldom aid.
The Doctor said we were fishing for evidence and paying for
them. It must be considered who these people are ; that they
would not come in unless upon a view of interest. We own the
certificate would be inadmissible if the man could be found- We
have done nothing absurd or ridiculous. The purpose of our
allegation is to introduce their declaration. The Doctor says this
declaration is very suspicious. Humanity was his motive for
signing it. He knew it was a transaction of long standing, that
the person interested was in a French prison. He himseK going
to an unhealthy climate was apprehensive of consequences, and
therefore desirous of doing justice. The witnesses will tell what
was done at the time of the declaration and what was the induce-
ment to make it. In the ease of a will at St. Kitts, the declaration
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HIGH COURT OF ADMIRALTY. 17
of a witness was received, though such witness was not pleaded 1766
to be dead. Lakgwill
Dr. CoUyer. — The practice of the Prerogative Conrt is diflFerent j^^
from that of the Admiralty ; therefore the cases can't be com-
pared. If they are unable to prove we ought to be dismissed.
Sir Thomas SalifSywry^ Judge. — Mr. Boss does not say he has
paid the ransom money. Stoddard relates the facts. The defen-
dant don't pretend the advertisements are not in the common
way. What witness can be expected to come from Arundel with-
out bis vicUieaf This is a very extraordinary case. I admit the AUegation
aUegation and exhibits. S^!''*"
JOHN CLAEKE, Master, by Indenture, op WILLIAM ^766
WHITE V. "ROYAL DUKE," Samuel Sparrow, Master, iwn. Term.
WAGES.
Qrene. OosUing.
JDrs. Rarria and Calvert. Drs. CoUyer and Wynne.
Dr. Harris opened the case and suggested that a master 0- Whether a
- .*...,-_-,. °° . ._, master forfeits
ought not to forfeit for the fault of his apprentice, as follows : — the wages of
John Clarke has libelled against the owners of the Boydl Duke, (durmgthe ^
as master, by Indenture, of William White, for wages earned by *"^|J^ ?®'^®^
the said White during his service aboard the said ship after the ship) by his
rate of 45 shillings per month (pursuant to an agreement afterwards?
between Murray, the mate, for the master of the Boyal Duke, and
the aforesaid John Clarke), t.e., from the 7th of June to November
14th. We say Mr. Clarke's agreement was for White's serving
on board from Sheemess to ... • and back again. They say the
apprentice signed a contract afterwards to serve on board, without
specifying any particular time or voyage ; that he afterwards
deserted and thereby forfeited his whole wages. The question,
therefore, will [be] whether an apprentice can destroy or invalidate
a prior engagement entered into by his master on his part by a
subsequent contract made by himself without his master's know-
ledge?
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18 HIGH COURT OF ADMIRALTY.
1766 Dr. Collyer. — The Boyal Duke's owners contracted for her service
Olarkh with the Government as a Transport. William White, the appren-
J^- tice, signed the contract to serve as a mariner on board the said
Royal Duke, ship ; consequently is bound thereby. He afterwards deserted ;
and we, being bound to have such a number of hands on board,
were obliged to supply his place.
Dr. Harris. — The whole view of the gentlemen entering into
the merits of the second contract must be to set aside the former
as more beneficial. Mr. Clarke was privy to the first contract
only. We say he is entitled to wages for White's service from
June 7 to November 14, being the time he was actually on
board. We except to the general rule — that a forfeiture of the
whole wages is incurred by desertion — and insist it cannot
operate in the present case. If it did, nothing would be easier
than to give an apprentice four or five guineas to desert, that his
master might incur a forfeiture of the whole wages. A qtMntum
meruit is due. If the owner of the Bcyal Oak had been paid for
thirty-two men, being the complement agreed on, he must pay
my client his demand.
Dr. Calvert. — This apprentice was hired by Murray, mate of
the transport Boyal Duke, for the master of the said vessel, with
the approbation of John Clarke, his master, who has a right to
his wages. The contract is only that he shall serve on board the
said ship without defineing any particular time or run. The
reason of the forfeiture being incurred is on account of a person
failing in the performance of a particular certain voyage. The
statute must intend the master of the ship shall contract legally,
which he cannot do with a minor, who is not sud jui^is. K an
apprentice by desertion should forfeit his master's money, great
inconveniences would follow. They don't appear to have deducted
this man's wages from their demand on Government ; if they
have not, you will not suflFer them to rise up with our money.
Dr. Collyer. — I insist every apprentice may contract with his
master's leave, as well as a fevae covert with the consent of her
husband, or a minor with the approbation of his guardian. The
paper signed at Gravesend is a mere memorandum of Clarke's
consent that his apprentice should serve on board the Boy cU Duke.
The other is the contract and agreement with Samuel Sparr, who
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HIGH COURT OF ADMIRALTY. 19
was not present at the first transaction. The gentlemen will 1706
allow that he may contract in the presence and with the consent clab^
of his master. They themselves have brought in the contract, J^
via., '^ shipped Wm. White on board the Boyal Duhe, 7th June, Royal JHjkm.
at £2 5s. per month, per Alexander Murray; the said White
being articled apprentice to John Clarke by Indenture." There
might be many of this description who by deserting might leave
the ship without hands, which would be very detrimental to the
service ; for if the master is not liable, the apprentice would not ;
thus the master of the vessel would be left without his remedy.
Dr. Wynne. — Contracts with the Government ought to be con-
strued strictly. No proof has been offered that the party was a
minor. The gentlemen insist on two points, viz., that the
mariners' contract, brought in by themselves, cannot bind the
master, and that his interest can't be affected by the misbehavior
of the apprentice. They want to set up a paper by caUing it a
prior contract Alexander Murray says he left that paper as a
certificate that the mariner should have 458. a month, when he
had signed the contract, which he explains to be the mariners'
contract, which it is necessary should be signed, as a proof to the
Grovemment that the ship had such a number of hands. Memor-
andums are made in the margin, when any deserted. The wordd
of the contract are ^^ during the continuance of the intended
voyage." If White was legally hired, the next question wiU be,
whether his apprenticeship will excuse his offence. Kow it is
clear the master is answerable for his faults, as he is entitled to
his gains. If a person employs a tradesman, and he entrusts his
apprentice, who acts improperly, the remedy lies against the
master. If the doctrine contended for by the gentlemen should
operate^ and apprentices were liable to be pressed in war time,
their masters would contrive to put them in the way and bid
them desert the first opportunity, and that they would claim
their wages afterwards. And then who must bear the loss?
The apprentice, or the captain, who had suffered by their deser-
tion ? There is plain proof that White did desert, and I hope
you will think his master liable to answer for his misbehavior.
Dr. Harris. — ^The ship was distressed for want of hands ; Clarke
parts mth his apprentice to accommodate them, and this is the
c 2
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20 HIGH COURT OF ADMIRALTY.
1766 return they make him. Why should any memorandum be
Clabkb taken ? Did Clerk understand the agreement in that light, or
r^ as a certificate ? It is signed by Murray, and has all the form of
EoTAL DuKB. a certificate. How could it be more solemn ? Clerk is not
affected with knowledge of anything. It is unreasonable to
suppose he would part with his apprentice without being paid for
his time. Can it be conceived he would allow his apprentice to
contract in stronger terms than he knew of? The gentlemen
say we have proceeded wrong. K so, why did they not appear
under Protest? Dr. Calvert begs the question by supposing all
the mariners apprentices. We offer a particular exception which
proves the general rule.
Dr. Calvert. — ^Let them shew this contract was with the master's
consent, who can't consent with words of less import that the
apprentice shall enter into a contract which denotes more than
those words convey. We claim wages only for the time he
actually served ; which is an answer to and confutes the suggestion
that Clarke directed White to desert.
Sir Thomas SalisbtMry, Judge. — By the same parity of reasoning
that a master is entitled to the gains made by his apprentice, he
ought to be responsible for his neglects. I think the master is
not entitled to any wages for the service of his apprentice, he
Plaintiff dig. having forfeited them by his desertion. I condemn the plaintiff*
^J5^^ in ^ ^^^^ ' ^^^^^ ^®'® *"^^ ** *^^-
costs.
DAVIS V. ROTCH.
1766 WAGES.
Trin, Term, Farrant. Goodwin.
Br. Wynne. Br. Calvert.
Q. ShaU a Br. Wywne. — This is an action brought by Robert Davis, chief
J^j^yy mate of the Biamond, against Joseph Rotch, master of the said
^>M«ed by ghip^ foi wages. 18th September, 1763, the Biamond, being at
when half the Boston, designed on a voyage to Nantucket in New England,
JS^Sl^ " thence to Bristol, Plymouth, London, and back to Boston, Rotch
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HIGH COURT OF ADMIRALTr. 21
shipped Davis to serve as chief mate at £2 10«. per mouth ; who 1766
with Botch the master and the rest of the mariners duly exe- davis
cuted articles of agreement for performing the said voyage, rotoh
Davis went on board abont the 18th September, and when the j^^^ ^j^^
ship was laden proceeded in her to London, where she arrived "^ag^s ^o
1st February, 1766 ; where, having delivered the outward cargo, earned by the
she took in a return cargo to Boston, where the voyage was to ^^^^J^®'
have been completed ; after which, viz., about the 10th March ^jjau^an^
Botch abused Davis without provocation, drove him out of the for defraying
ship, and declared he should not return in the said vessel to his n^tum to
Boston ; and to force him from on board took up a large rope's ©iti^tlj?
end and threatened to beat Davis therewith, if he did not quit
the ship ; so that, at last, he forced him over the gunnel ; and imme-
diately after shipped . . . Stevenson as chief mate, who was then
a passenger on board the Diamond. Davis is a native of New
England, and by being drove from the DiamonJCs service is
greatly distressed and damnified. Botch, on bailing this action,
never oflFered to take Davis again into his service. We have
examined two witnesses on our Summary Petition, who prove the
facts laid.
Dr. Calvert restated the case ; objected to the sum demanded ;
and alleged they had not proved what they laid in the Summary
Petition.
Dr. Wyivne, having read the evidence, observed the mariners'
[contract] was now before the Court ; from which it appears, as
well as from the depositions, that the plaintiff was hired at
£2 10a. a month ; that he performed the voyage to London, and
was then without any provocation turned adrift by the master,
without being paid his wages, except one pound and a few
shillings, and a passenger appointed in his place. This appears
to be a very great hardship. The act of violence charged is
evident. Now it is clear, where a person is hired for a voyage
and ready to perform it, but is prevented by the violence of the
master, he is entitled for the wages stipulated for the whole time
the voyage would take up; otherwise captains might engage
persons, carry them out of their own country, and after repeated
acts of ill usage, turn them adrift without recompense. Besides
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V.
Botch.
22 HIGH COURT OF ADMIRALTY.
1766 the bare payment of the wages, as above mentioned, is insufficient ;
p^yig he is likewise entitled to a sum of money for his subsistence from
the time of his dismission and for the expense of his passage to
America, he haying been unable to obtain employment since. I
hope yon wiU think onr demand just, and decree us the whole
wages libellate.
Dr. Calvert. — If an improbable case is laid before the Court,
the eyidence, though positiye, will not be regarded. I agree
with Br. Wynne that if the master had turned Dayis out of the
ship, without any delinquency on his part, he would be entitled
to his wages. But it is not probable that the captain would
force his chief mate out of the ship in the midst of her yoyage,
when the ship was laden and ready to sail back to America. One
of the witnesses don't speak to Botch threatening to rope's-end
Dayis, but only that he had a rope's-end in his hand. The other,
indeed, speaks positively to that point. You would not give
more wages than is claimed, though one of the witnesses says
they were higher. The wages are laid at £2 10s. per month ; and
one witness says the agreement was for £2 15a. per month, which
shews his ignorance of the transaction. The mariners' contract
makes it £3 8a. per month ; but that relates to the currency of
America. It don't appear what the value wiU be when reduced to
the currency of Great Britain. If a witness don't oflFer probabili-
ties, causa scientue, he is not to be credited. The witness says Davis
is a native of Boston, yet owns he knew nothing of him till they
sailed. They charge £7 10a. till the ship arrived at Boston, which
they say was three months, but don't prove it. They lay fifteen
guineas for the passage to Boston, which is a mere ipse dixit,
without any proof oflFered to support it. The next claim is for
subsistence from March 10th to April 15th, which is charged at
£3 10a. I don't understand how they are founded in the charge
of these several items. I hope you will think they have not
ascertained the charge laid.
Dr. Wynne. — As to the fact of the voyage and service, it is so
clear that it cannot be controverted. The Doctor therefore has
recourse to the improbability that a master wanting sailors should
turn a mate out of the ship. But that objection must vanish
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HIGH COUKT OF ADMIRALTY. 23
when the Court observes the witnesses say Eoch took another 1766
mate the very day he dismissed Davis, whom he owed five months' davis
wages ; and therefore, supposing Eoch cruel enough, it was his rJ^.
interest to take a person to whom he must only pay for the
return. The Doctor observed also the Petition did not charge
Boch with actually striking Davis. Now both the witnesses [say]
he held a rope's-end in his hand, and one swears he threatened to
strike him ; which is as strong a proof as can be offered where
witnesses differ at all. Another objection was our not having
ascertained the qtuirUum of wages due, and that there is no proof
as to the time necessary to be taken up in the return. In answer
to the qua/nttmh of wages you have the Mariners' Contract before
the Court, which is an instrument against which they cannot aver ;
and though there should be an error in the Summary Petition,
you will rectify that and judge by the Contract. As to the time, if
we had laid an improbable time for the return, why did they not
contradict us ? We hope the Court will think we have a right to
the wages for the time requisite to carry the ship back to Boston ;
that our claim is reasonable, and that you will pronounce for the
wages libellate.
Sir Thomas SdHshvry^ Judge. — The hiring Davis is agreed.
The evidence don't seem to prove absolutely that he was born at
Boston, though they say he was domiciled there. There lies no
imputation against Davis for misbehavior. The master don't
appear to have had any provocation for his proceedings. I shall
always endeavour to discourage obstinacy and disobedience in the
mariner and to prevent cruelty and tyranny in the captain, whose
behavior on this occasion appears wantonness and violence. I
think Davis has deserved his wages, and do accordingly decree
£3 for subsistence, £5 for defraying the expense of his return to
Boston, and the wages, as laid, being £14 3s,, I also decree costs The wages
decreed with
against the defendant £18 5s. costs.
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24
fflGH COUBT OF ADMIRALTY.
1766
ith Sess. M, T.
Q. How far
the contract is
binding in
the crew ?
Whether the
accident is
within the
constraction
and meaning
thereof?
BENNET V. BUGGIN.
8UBSTBACTI0N OP WAGES.
Goodwin,
Drs. Wynne and Sever.
Fuller.
Drs. Collyer and Calvert.
Dr. Wynne. — The Denham, East India ship, whereof Barrington
Buggin was owner, laden with bale goods, sailed in December,
1758, from Spithead to Johanna, then to Ceylon, where she deli-
vered stores to Admiral Pocock, then to Madras where she took
in cotton, delivered the East India Company's goods at Bengal,
and there took in saltpetre, then to Masulipatnam, where she
took in a chest of treasure, with which the ship sailed for and
arrived at Bencoolen, March 27th, 1760. There she received an
account from Grovemor Carter that two French men-of-war were
at Mocoa within two or three days' sail of Bencoolen, and an
order came from the Governor and Council to bring the ship into
their inner harbour ; March 29th, they were ordered to come as
close as possible to the shore to unlade the vessel, and in case
they should not be able to escape the enemy to set the vessel on
fire. In consequence of the aforesaid order the crew took out
the stores and part of the cargo, and, March 30, destroyed the ship.
Mr. Bennet has brought his sute of substraction of wages against
Mr. Buggen, the owner. The action was entered for £300, 14th
September, 1763, and bailed by Puller, September 16th, 1763. '
The owner pleads in bar to the sute a clause in the Mariners'
Contract (on the Act of Parliament . . .), " That in case the ship
shall by danger of the sea or any other accident be destroyed,
and shall not return safe to England, the mariners shall be entitled
only to their two months' pay advanced by way of imprest, and
one month's pay in six, which may be received in their absence
by their lawfull attorneys." Our evidence proves that the captain
promised, in the absence of Governor Carter, that if they would
obey orders and stand by the captain and settlement they should
receive their wages. Edward Tibet, who is confirmed by Joseph
Buster, one of the opponent's witnesses, says that the captain in
the presence of the Governor told the men that, if they would
defend the settlement, they should have their wages. The wit-
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HIGH COURT OF ADMIRALTY. 25
nesses add, if the ship had not been forced into the inner harbour 1766
she might have escaped. bennbt
Dr. CoUyer. — The Denham was set on fire by order of the buggik.
Governor and Council, and with the consent of the crew. I
admit Captain Pry told Bennet if he would be faithful he should
have his wages, but the captain's promise is not binding on the
owners, who were no parties thereto. The question is, How far
the contract is binding on the crew ; and whether this accident
is within the meaning and construction thereof? The contract
is that the captain agrees to pay the crew two months' wages in
hand, by way of imprest, and that each sailor shall be entitled,
during his absence, to receive by his lawfull attorney one month
pay in six, and if the ship returns safe to the port of London, the
rest of the wages are to be paid in ten days after the goods shall
be discharged into the warehouses of the East India Company ;
that the wages are not to be demanded or sued for sooner ; and
that if the ship shall by danger of the sea, or by any other
accident whatsoever, be disabled or lost during this voyage, so
that she shall not arrive back at the port of London, the mariners
shall not be entitled to receive or be entitled to any wages from
the master, owner, or company, more than the imprest money and
one month wages in six as aforesaid. This contract is signed
and sealed by all the mariners.
The evidence sets forth that, on the 30th March two French
men-of-war being seen bearing down, the command of the ship
was, as Captain Fryon alledges, taken from him by the Governor,
who ordered him to bum the ship and take the crew on shore to
defend the place, that he set fire to the ship accordingly.
Dr. Wynne. — Thomas Bennet served on board the Denham from
September or October, 1758, to March, 1760, during which the
ship performed variety of service in the ordinary course of the
East Lidia trade, and also carried stores for the purpose of the
Government to Sir George Pococke's Fleet I am surprised such
a defence should be set up by an opulent owner or by the East
India Company, and that they should oblige the men to sue for
their wages. They have made it a question of law. Admitting
the facts, they are entitled to their wages. By the general
maritime law (without any contract), where a total loss ensues,
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26 HIGH COURT OF ADMIEALTY.
1766 without any profit made, each must bear his own loss : viz., the
Btonet~ owner, his vessel ; the merchant, his goods ; and the sailor, his
BcooiN wages. The common law assigns a reason why in such a case no
wages should be paid ; because, if the sailors were at all erents
entitled to their wages, they would not be ready to risk their
liyes for the preserration of the ship. When a ship delirers
goods at different ports, the sailors haye a right to their wages to
that time ; freight being the parent of wages, and the merchant
having profited by his freight. This position will scarce be contro-
verted. But, say the gentlemen, the general law is controlled by
the contract. I admit this position may be controlled by con-
tract; whether by this contract the case is controlled, is the
question. I must then consider, what are the words and import
of the present contract. The loss of the ship, as it appears in
evidence, can't, I submit, in evidence be considered, in common
construction to be by dangers of the sea, or other accident ; by
which is understood the act of God or Fortune, not the act of man,
as this is, a deliberate act done by order of the Government and
Council, who did not consider the ship, but the settlement and
the danger that was in froto the enemy. The captain promised
the crew their wages, if they would assist in defending the fort.
Everything was removed ; they set the peril of the ship against
that of the settlement, and hesitated to prefer the consideration
of preserving the latter. Is there any real fault, or even pre-
sumption thereof, laid to the charge of the crew ? A presump-
tion of fault, by the books, induces a forfeiture of wages in a meer
accidental loss. Here is none. It is the accident that subjects
the mariners to lose their wages, that is because of a legal pre-
sumption of fault. The evidence is that they could have escaped
if the Governor had not issued such orders. Instead of advertising
the ship to scdl away as soon as he knew the French were on the
coast, two or three days off, the Governor drew them into a trap,
and rendered their escape impossible. He might do well for the
Company, but it was a dreadfuU thing for the poor men. The
defence is as unreasonable as possible. I must take notice of
another stipulation in the contract — that though the ship should
break bulk, and deliver goods at different ports, the seamen
should have no farther demand of wages than aforesaid, any
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BU«0IN«
HIGH COUBT OF ADMIBALTY. 27
usage, law, &c., to the contrary notwithstanding ; whereas by the 1766
general law sailors are entitled to their wages to the port of de- binnkt
livery, though they do not retnm to the port of lading. I admit
the contract to be binding, but insist, where there is room for
interpretation, it should be in fayour of the mariners, who know
not the nicety of such contracts, as the owners do, who get them
drawn by the advice of the East India Company's Council. It is
said the East India Company pay no freight for the outward- N.B.— That ib
bound cargo, but a very large flight for the homeward-bound
cargo. I should doubt it, and suppose the owners will have the
same equitable demand for their freight against the Company, as
the sailors have against them for their wages. It is not proved
the owners receive no freight. The presumption of law is that
they do. I beg leave to rely on this point, that the accident in
question never was within the meaning and contemplation of the
contracting parties ; and that the transactions of this ship are not
such as ought to be considered on the foot of a general trading
TC^age, having been employed on so many different services, and
that the seamen are entitled to wages in proportion to the freight
made by the ship.
(I was prevented having the pleasure of hearing Dr. Bever^s
ingenious argument, and therefore am obliged to omit it.)
Dr. Cottyer. — I expected we should have heard a great deal of
the hardship the men were exposed to in Captain Fryon's promise
not being fulfilled. But Dr. Wynne was satisfied he had no right
to make it. Dr. Bever has taken that point up. In that case the
action should have been brought against the captain, and not
against the owners. This trade is in the nature of a bottomry
contract, that if they return safe, they come home rich, and the
owner forfeits his profits if he don't perform his contract to the
company. This is the law, though we have not proved it. The
men have particular privileges and emoluments, claimable only
by the usage and custom of the service, for instance, a venture ;
80 that this stands upon a footing very different from other
services. It is in the nature of a bottomree contract ; and the ship
£edling to perform it, the owners and sailors fail too. She was
hired for several services. It is usual for the ships of the Company
to carry stores. The distinction of the ac»cident is nugatory.
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28 HIGH COUBT OF ADMIRALTY.
1766 It was a public concern^ that the ship should not fall into the
Benhst enemy's hands. There were only a few things taken out ; the
Buooni cargo was left. The captain had no authority to promise the men
wages. If the Court should say the crew is entitled, who is to
pay them ? Not Mr. Buggin, who has lost his ship and freight
too. They must run the same risk with the owner. The captain
acquainted the crew with the order for burning the vessel, to
which they made no objection. What is danger of the sea, if
&lling into the enemy's hands is not ? Perhaps the East India
Company would do an act of compassion to consider the poor
men. But it is not incumbent on them to do so, and the men
have no claim to it. But it would be hard on Mr. Buggin to be
liable to pay when he has lost his all.
Dr. Calvert. — It is the general marine law that freight and
wages are lost with the ship. This doctrine is received by the
Common Law, because it is the law of reason. It is said a sailor
may claim wages when he comes to a port of delivery. Ad-
mitting the doctrine, they are barred by the clause in the contract.
The East India Company pay little or no freight for the outward,
but a very large freight for the homeward bound cargo. It was
not necessary to plead this ; it is notorious. Whatever freight
the Governor paid was paid to the company. The impress money
and the one month pay in six answers the service performed. We
are not now before the Court on the general law ; but should that
be in their favour, it is controlled by. the contract It is said this
accident don't fall within the words of the contract There are
many ways of ships being lost, by sinking, fire, and capture by
the enemy, which is as much an accident as a loss. This ship
was burnt to save her falling into the enemy's hands. Where is
the difference ? It is not warranted by evidence that the ship
was burnt to save the settlement That was not the object The
order was to destroy her, if she could not escape. The captain
consults with the Governor and Council. He represents the
situation of affairs to the ship's company. There is no pretence of
a sinbter view. A verbal promise, contrary to a written promise,
could not bind the owners. There is only one witness who speaks
to the words before the ship was destroyed. The others say they
were spoke after ; then the wages were forfeited.
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HIGH COURT OF ADMIRALTY. 29
Dr. Wynne. — My client would rather have your judgment, Sir, 1766
than rely on the generosity of the East India Company. I don't bennbt
know it is notorious Mr. Buggin has received his freight If that Buoani.
is so, it is very extraordinary he did not plead it Customs and
private usages can't be noted unless they are pleaded. Even
private Acts of Parliament must be pleaded. I am ignorant
whether the owner is, or is not, entitled to freight To be sure, if
such an accident happens as deprives the owner of his freight,
the men must lose their wages ; and, e canversoy if he chuses to
give up his own claim, the men are not to be bound by such
cession. Captain Fryon was the very man with whom the con-
tract was made. He can therefore best explain it. But it was
not merely the captain, but Mr. Carter the Governor, an officer
of the East India Company, in whose presence the promise was
made. If proof of a solemn promise be made, on an emergency,
it is not clear it would not be binding. I never gave up Captain
Fryon's promise ; I had no power to do it. The question is. Was
this accident in the contemplation of the contracting parties?
It certainly could not be. Private advantages of the sailors is
mere suggestion. The situation the ship was brought into was
by the Governor's orders, which I hope I have established, and
that you will pronounce for the wages claimed.
Dr. Bever. — The seamen might consider what the captain said
as an explanation of the contract It is clear the captain did not
look on this as such an accident as could deprive them of their
wages. This sense of it led them into this sute.
Sir T. Salisbury^ Judge. — I observe there is no complaint
against the sailor. The exigency of affairs occasioned the acci-
dent The Governor sent a pilot to carry the ship into the inner
harbour. Seamen are bound by the contract, in cases of accident by
the sea and fire at sea. I don't see how they can be bound, when
they are ordered to burn the ship by the Governor. The mean-
ing of these contracts is, that the seamen shall stay and use their
utmost endeavours to save the ship on all emergencies. It is like
a house which is blown up by order of the magistrate, to prevent
a fire spreading. It is said the ship might have weight {sic) and
escaped, if those orders had not been issued. I can't call this an
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30 HIGH COURT OF ADMIRALTY.
1766 accident within the purview of the contract. I think the men
Benwet~ ^*^® deserved their wages, and therefore decree in favour of the
^' plaintiff with costs.
BUGGIK. ^
Fidler, for the defendant, protested of appeal.
[There was an appeal, which was afterwards abandoned; see Del. Assignation
Book.]
1767 BEOWN V. KENYON.
H, T. ith Sets. FORFEITUEE.
Instance
Cowrt. Appeal from the Vice- Admiralty of New York, promoted by John Brown,
Esq., commander of the sloop Bawk^ against David Eenyon, Walter and
Samuel Franklin, owners and claimants of the ship New Tork^ and against
Alexander Claxon, the master of the said ship, and claimant of thirty casks of
wine and twenty boxes of soap, seized as forfeited.
Ooding. AUham.
Drs. Marriot and Wynne. Drs. Harris and Calvert.
Q. Whether I^. Sarrts. — 19th December, 1763, Captain Brown filed a Libel
^fzStte ^' Information in the Vice-Admiralty at New York for the King,
high seas or the Lieutenant-Govemor of New York, Lord Colvill, Bear-
mthejportof . ' '
New York ? Admiral and Commodore of the Fleet in North America, and
wine and soap himself, and the o£Scers and crew of the HawJcy setting forth that.
New l^k?*^ December 2nd, he seized the New York, her tackle, apparel, and
Q. Is it an furniture, thirty casks of wine and twenty boxes of soap, which
miportation . t-i i
?rithin the wine and soap, being European commodities, were imported into
New York not having been shipped in England ; and he prayed
ship and cargo to be condemned as forfeited pursuant to the
statutes, and stated that by an Act made 3 Geo. 3, entitled " An
Act for further improvement of His Majesty's Customs " and His
Majesty's Order in Council thereon, 1st June, 1763, half the for-
feiture is vested in him, his o£Scers, and crew, and prayed the
same may be decreed to him.
2nd January, 1764. The owners claim the ship and cargo,
and insist the seizure was made on the high seas, and deny the
wine and soap were imported into New York.
Same day. Walter Franklin of New York, merchant, gave bail
for the claimant in £60.
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HIGH COUBT OF ADMIRALTY. 31
7th January, 1764. Captain Brown filed a general Replication 1767
to the claim. Bbown
6th February, 1764. The claimants filed a general Rejoinder, ke^oh
Both Parties then filed Interrogatories, on which the witnesses
were examined.
Thomas White, examined February 27th, 1764, says: — ^He
chartered the ship from New York of Walter and Samuel Franklyn,
for Port au Prince; that she was intended to return to New
York, yet that was changed by agreement between the deponent
and Walter Franklyn about a month before the ship arrived at
Sandy Hook. The reason was, the deponent was convinced his
cargo would not bear the expenses of lading and the duties at
New York, and had a prospect of a good voyage to the Isle of
Man, to which, by agreement, she was to proceed and land her
cargo. Deponent was determined the same should be sold there.
The circumstances of the agreement were, that deponent told
Walter Franklyn he must let him have the ship to carry the rum
and molasses to the Isle of Man, for he could not afford to land it
at New York and pay the duties, and hoped Franklyn would ask
a reasonable freight. Franklyn said he would leave it to two
merchants, and deponent agreed to do so. That orders were sent
by Franklyn not to come up to New York, and were sent by
different pilot boats some days before the ship arrived at Sandy
Hook. The substance of those orders to master was, to proceed
to Princes Bay or Amboy Road, and to apply to Corkland Skinner
there for further directions and what he should want. Deponent's
reasons were that Princes Bay or Amboy Road is a better place
of safety than the Hook, and that he should lie there till deponent
could have his letters and direction for his correspondent at the
Isle of Man got ready and sent on board ; and that the owners
might send directions to supply the master with provisions, and
land the deponent's coopers. The intent of ordering the master
to Amboy Road was not to land the cargo, for deponent deter-
mined not to pay duties there, or to run the least risk with any
part of the said cargo. That those orders were received by the
master, for he hath since shewn them to deponent .... That
241 puncheons, 17 teirces, 13 Bourdeaux hogsheads of rum,
and one ullage teirce of spirits, and 40 hogsheads of molasses
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32 HIGH COUBT OP ADMIBALTY.
1767 belong to deponent to be delivered to his order. That he is
Bbowh noways interested in the vessel further than having chartered
Kbhtow ^^^' ^® ^® ^^* interested in any part of the cargo, the importa-
tion whereof into the plantations from a foreign port is prohibited.
Deponent gave no order to his factor to ship any such goods, but
gave the contrary orders to him.
James Moran, examined 28th March, 1764, says : — The master
reported the ship at the Custom House of New York for the Isle
of Man, but can't recollect the time, but remembers it was about
the time the ship was said to be seized, either before she got up
to the port or immediately after. Deponent proves the manifest
of the cargo marked " C."
Bichard Mercer, examined 13th March, 1764. He supports
White's evidence, as to his agreement with Franklyn for the ship
to deliver her cargo at the Isle of Man.
Peter Bard, examined 19th March, 1764, deposes to the same
effect, and that letters were sent to the master, not to come to
New York, but to proceed to Amboy Bay, and wait farther orders.
He heard the master confess he received the said orders twenty-
four hours before the ship was so seized, and whilst she was some
leagues at sea, without Sandy Hook, on the day before the day
on which she was seized.
Cornelius Benian, examined 17th March, 1764, was present
when the ship New York was seized about the 30th November
last by Stede, first lieutenant of the Hawk, by Captain Brown's
orders. The ship was then lyeing in a bay near Sandy Hook, in
such a condition that she could go to sea again. The master was
twice soUicited to conceal any goods in boats which were alongside ;
first by Fundraw, a pilot, three or four leagues out at sea beyond
the Hook, twenty-four hours or upwards before the seizure ; and
after by John Drykill, or some other of the pilots who came on
board him about ten hours before the said seizure. Deponent
believes he was asked those questions because the £atfljb ship of
war was in the Bead within the Hook. That said persons told the
master the officers of the Hawk searched every vessel that passed.
The master would not comply with such soUicitations ; said he
intended not to run the least part of his cargo ; cared not how
many ships of war were there ; was not afraid of anything they
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V.
Kenton.
HIGH OOUKT OF ADMIItALTY. 33
could do to him. Deponent understood and believes the port of 1767
delivery was changed by agreement about four weeks before the brown
ship arrived at the Hook. The cause was that Thomas White^
the owner, did not chuse to pay the foreign duties, and the cargo
was therefore to be delivered at the Isle of Man. That orders
were brought from New York on board in Abdell's pilot boat, and
the master, being informed by Fundraw, the pilot, that there was
a letter for him on board said boat, sent for it. The master
received a second letter by John Drykill. Deponent knows not
at what time these letters were sent from New York, but the first
was received twenty-four hours, and the second ten hours before
said seizure. The contents of those letters were directions to the
master to proceed with said ship to Amboy Boad, and there wait
for orders for the destination of said ship and cargo in that
voyage. The said orders were received by the said master whilst
he was at sea, without the Hook, the first at least three leagues
at sea. He saw them received, and read the same.
Protest and a£Sdavit of James Emmot, H.P. That Walter
Faulkner and he, the notary, demanded the ship of . . . Stede,
lieutenant of the Hawk : December 3rd, told him she was in-
tended for the Isle of Man, and only touched at New York for
orders, and was entered at the Custom House.
11th April, 1764. The claimant's petition, the judge to give
his testimony and file interrogatories.
14th April, 1764. Bichard Morris, Esq., gave his testimony ;
hut not being on oath it was not allowed to be read.
William Fundraw, examined February 20th and 21st : — Went
on board the vessel as pilot ; that Thomas Bbkeo carried a letter
on board said ship. Deponent heard the master say, the contents
were directions to proceed to Amboy with said ship, until he
should receive further orders. That one of the Hawk^s officers
with seven or eight men came on board to search her and seized
her. He came on board her within Sandy Hook, between two or
three miles. That the ship was at anchor. Believes the master
brought his vessel within Sandy Hook with an intention to pro-
ceed towards Amboy, and wait his owners' further orders.
The same witness' second examination. — That the master on
the day before, and on the day of, the seizure was about eight or
D
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Kemtoh.
34 HIGH CX)UKT OF ADMIRALTY.
1767 ten miles outside Sandy Hook. Was soUicited by a pilot, and
Bbown also by a person in one of the pilot boats to put any part of the
cargo out of said ship into said boat, which he chose, and said
person would preserve or carry the same to New York. That he
was advised to that measure because the men-of-war were very
severe and strict in searching all vessels which came inwards.
That the master refused to comply with the said soUicitation, and
declared he would not put the value of one copper out of his ship,
and intended to run no part of his cargo.
James Miller on Captain Brown's interrogatories : — He was a
mariner (m board the ship New York, and shipped for a voyage
from New York to the West Indies and expected to return.
(To 4th interrc^tory.) The ship proceeded to Port au Prince and
took on board rum, molasses, and a small quantity of soap and
wine ; knows not for what port laden. Understood the ship was
bound to New York. (To 5th interrogatory.) Knows of no inten-
tions to land the cargo at any particular place. Don't believe
any part was intended to be smuggled. (To 7th interrogatory.)
Has no reason to think the master intended to land any part of
the cargo in any of the plantations.
Do. on cross interrogatories on the part of the Claimant to 6th
interrogatory. — Heard the first pilot who came on board said ship,
the day they made land, teU the master of the ship New York,
that one of the men of war at the Hook would have him and his
ship before to-morrow night. The master replyed, he cared not
how many men of war he should meet, for he was neither going
to run any goods, nor break any bulk of his cargo, and was not
afraid of them.
John Shapcock, a mariner on board the Hawk, having released
his interest, examined 25 Feb. 1769. — Saw the New York arrive
within Sandy Hook about 2 Dec. last, and shortly after saw her in
the port of New York. Alexander Claxton was then master of
her. He was not on board her till she was within the Hook. He
went on board to assist in taking care of the ship that next night.
Don't know of any letters carried on board said «hip. The
master said she was voluntarily brought within Sandy Hook.
Heard the master say, soou after deponent came on board, he
wished the captain of the man of war would send him up to
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HIGH COURT OF ADMIRALTY; 85
Amboy, with an officer on board to see him enter his cargo. Heard 1767
the master ask the pilot if there were any good wharfs for heav- bbown
ing down at Amboy, for he believed he should there heave kenyoit.
down.
Decree of the Judge of the Vice Admiralty of New York, given
May 30, 1764. — I have considered the proofs and the several
statutes relating to this cause, and do not think the ship, and 30
casks or hogsheads of wine and 20 boxes of soap in the informa-
tion mentioned are forfeited ; and therefore do acquit the said
ship, with all her boats, guns, tackle, apparel, furniture, appur-
tenances, and also the 30 casks of wine and 20 boxes of soap in
the information mentioned. And I do order and decree that
the informants pay the claimants their costs, to be taxed.
31 May, the informant filed an appeal to the High Court of
Admiralty.
Dr. Marriot — ^The manner of carrying on this cause differs
from the usual mode of proceeding in our Admiralty Court. The
cargo claimed to be arrested is a mixed one, of which some part
may be landed at New York, paying the duties, other parts are of
that nature as to subject the ship and cargo to forfeiture by the
importation. The whole idea of the voyage, by the account of
the charter party, seems to be a general smuggling voyage. She
took on board a prohibited cargo, and sailed therewith to Port au
Prince, whither she could not have gone without being an adopted
French ship. The defendant denies that any of the commodities
were imported into New York. (N.B. — The rest of the opening
being a recapitulation of facts stated before, I purposely omit
them.)
Dr. Harris. — This is a case of great consequence to the public,
as well as to the individual. The question is whether a ship
laden with goods which were not the produce of the country from
whence they were brought, and were never landed in Great
Britain, can be stopped before she enters any port or bay of the
British colonies in America. Dr. Marriot hinted in his opening
that there was no claim. But he forgot that Captain Claxton
has claimed everything. I will first endeavour to state the facts,
and then to apply the law. This ship was chartered from New
York to Port au Prince. Dr. Marriot says no ship could go
D 2
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36 HIGH COUET OF ADMIEALTY.
1767 there but a smuggler ; therefore she was a smuggler. I answer
Bbown this ship was bound to Port au Prince with a cargo beneficial to
^^^jj this country ; and whether she was a smuggler with respect to
the French is immaterial. It don't affect the return cargo. But,
say they, it shall not be legal to import certain goods into
America, without first landing them in Great Britain. By
Continu<>d by 6 6eo. 2, c. 3, *' dd. per gallon is laid on rum and spirits made in
c. 82. ' the American Plantations not belonging to His Majesty on
importation to the British Plantations, and 6d. per gallon for
molasses and syrups, and 55 per c. weight for sugars and paneles.
If any of the said goods are landed before entry and payment of
duties they shall be forfeited, and may be seized and recovered in
the Court of Admiralty, or in any Court of Record there ; half to
His Majesty, one-third to the Governor, one-third to the informer
or prosecutor. No sugar, Ac, except of the British Plantations is
to be imported into Ireland, unless shipped in Great Britain, under
penalty of forfeiture thereof, and the value, together with the
ship or vessel in which the same shall be imported, with aU her
guns, tackle, furniture, ammunition, and apparell ; the master of
the ship permitting such importation to forfeit £100. Sugars
may be imported from the Spanish or Portuguese dominions as
formerly."
The law permits goods to be brought from French ports to
English ports. The trade is beneficial to the kingdom. It takes
oflfa great quantity of lumber. Whatever the original destination
of the return cargo was, there is strong proof of its being changed
a month before the arrival of the ship. White says a month
before the New York returned he had leave from Faulkner to sail
her to the Isle of Man. The opponent's witnesses say the same.
Letters were sent to the ship for that purpose, that he should not
break bulk at New York or Amboy, but that he should come to
Ainboy and wait further orders. Is there anything reproachable
in the captain's behaviour? He is soUicited to run any part
of his cargo, but refuses, and proceeds to Sandy Hook, which is no
port, but the open sea, leading to the Bays of New York and
Amboy. There she is seized and carried into the Bay of New
York by Capt. Brown, who had no authority so to do, not being a
custom-house oflBcer (as is asserted), as 7 & 8 Will. 3, c. 22, s. 11
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HIGH COUBT OP ADMIRALTY. 37
directs, viz., " That the Lord Treasurer or Commissioners of the 1767
Treasury and the Commissioners of the Customs in England may bbowv
constitute and appoint ofScers of the customs in any town, port, kmJtok
&C., in any of the islands," &c. ; whereas he was appointed only
by the one. He therefore had no authority to seize the vessel.
Before I quote the Act, I must make an observation or two, as
that it is a very penal Act, therefore to be construed as beneficial
as possible for the accused, and strictly for the Crown, who must
be tyed down to the letter. It will depend entirely on the con-
struction of the word " import," which, according to the idea of
the gentlemen, should signify carrying into a port. But in its
primary sense it has no relation thereto. In the Latin lexicon
of Henry Stevens Importo is derived from porto, to carry, and
that again from Parta^ a gate. Did ever any captain say, I
imported my ship, instead of, I carried it into port ? The Act
includes America, which is a continent, and says, '^ No commodity
shall be brought which is not imported by land or water." It
can't imply nonsense, the carrying into port by land. Sec. 8 :
** Every person or persons importing by land any goods into the
Plantations, shall within 24 hours give an inventory. And that
no ship shall lade or unlade any goods till the master hath made
known to the Governor his arrival, and given a perfect inven-
tory." The bringing into port is per se no offence, unless coupled
with an overt act, as breaking bulk or attempting to land. Any
Englishman might carry by land goods from the French to the
English settlements, the French being then in possession of
a part of North America. 1 Eliz. c. 11, s. 2 : ^' No person or
persons shall lade, or put, or cause to be laden or put off or from
any wharf, key, or other place on the land, into any ship, vessel,
or crayer, lighter, or bottom, any goods, wares, or merchandises
(fish taken by your Highness's subjects only excepted) to be
transported beyond the seas, or into Scotland, or to take up, dis-
charge, and lay on land, or cause or procure to be taken up
or discharged out of any lighter, &c., not being in a leke or wreck
and laid on land, any goods, &c. (except fish and salt), to be
brought from any parts beyond the sea, or the realm of Scotland,
by way of merchandize, but only in the daylight," &c. I men-
tion this to shew the unlading is the crime. 12 Car. 2, e. 4, s. 1 :
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38 HIGH COURT OP ADMIRALTY.
1767 " Every ton of wine of the growth of France or of any of the
Bbowh dominions of the French king^ that shall come into the port of
g^^jy London, and the members thereof, by way of merchandize by your
natural bom subjects, they shall pay £3, and by alien £4 10«."
Sec. 3 : "If any French wines, &c., be brought from parts beyond
the seas into any port, place, or creek of this realm by way
of merchandize and unshipped, to be laid on land, the customs
subsidy, and other duties, not paid or tendered to the collector or
his deputy for the same, nor agreed for in the custom house, all
such wines, &c., shall be forfeit to your Majesty." 1 Jac. 2, c. 4, s. 2,
relating to duties on sugar, tobacco, &c. : " If the importer,
merchant, planter, or other that shall import such goods, be a re-
tailer, the duties shall be paid on the importing or landing of
their goods before they be permitted or suffered to be carried
away from the custom house or other place in the port in which
they happen to be landed or brought on shore." The words
" importing " and " landing " are meant to be synonymous. It
is not then bringing a ship into harbour, but the landing, that
creates the offence. I will call the carrier the importer, and con-
sider it in that light. Captain Brown might as well haye seized
this ship in any other part of the high seas as where he did. It
would be absurd to say the importer should pay the duty before
See^ Jac. 2, ^j^^ goods are landed. Then he must pay the duty, but not
before. I will for a minute suppose 15 Car. 2 worded so that all
goods brought to America without being first landed in England
should be prohibited under pain of forfeiture. Could the penalty
ensue without the landing ? K it could, it would be a snare for
all vessels, though drove in by stress of weather or pirates.
Suppose part of the cargo entered, part not. Would the ship
be forfeited, without proving the intention to break bulk?
Surely not. Can't the captain land the goods which are custom-
able, and carry away the rest ? Common sense clearly demon-
strates it.
5 Geo. c. 11: "If any foreign brandy, arrack, rum, strong
waters, or spirits of any kind whatsoever, shall after 25th March,
1719, be imported or brought into Great Britain, or any port>
harbour, haven, or creek thereof, except only for the use of the
seamen then belonging to and on board such ship, vessel, or boat
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HIGH COURT OP ADMIRALTY. 39
not exceeding one gallon for each such seaman, every such ship, 1767
yessel, or boat, not exceeding the burthen of fifteen tons, with all bbown
her tackle, furniture, and apparel, or the value thereof, shall be keftoit.
forfeited, and shall and may be seized by any officer or officers of
the customs, and shaU and may be proceeded against and re-
covered in the manner hereinafter mentioned; and after the
seizure and condemnation of such ship, vessel, or boat, the prin-
cipal officer of His Majesty's Customs in the port or place where
the same shall be at the time of condemnation are hereby directed
to cause such ship, vessel, or boat to be entirely broke up and
the materials to be publicly sold to the best advantage, together
with the tackle, furniture, and apparel thereunto belonging, to
be divided, haK to His Majesty, and half to the persons who
shall sue for and prosecute the same." Sec. 8 : " Where any ship Sec. 8 relates
^i»iii i./»i» 1,, .1 ^ to ships of 50
or vessel of the burthen of fifty tons or under, laden with custom- tons hoyering
able or prohibited goods, shaU be found hovering on the coasts of ^^ 1^^
this kingdom within the limits of any port, and not proceeding ^*vn,?4d*^^"^
on her voyage, &c., wind and weather permitting, it shall be goods.
lawfull for any officer of His Majesty's Customs to go on board
every such ship or vessel, and to take an account of the lading,
and to take and demand security from the master, or other
person having the command of such ship or vessel, by his own
bond by him to be entered into to His Majesty, his heirs, and
successors, in such sum or sums of money as shall be treble the
value of such foreign goods on board, with condition that such
ship or vessel (as soon as wind and weather, and the state and
condition of such ship or vessel shall permit) shall proceed
regularly on such voyage and shall land such foreign goods at
some foreign port," &c. 3 Geo. 3 adopts 5 Geo. 2, s. 8, and says
it shaU extend to and take place all over His Majesty's dominions,
that is with respect to ships not exceeding fifty tons burthen.
But this ship is more than fifty tons, therefore not within the
purview of either of those statutes. Upon the whole, I hope
you will be of opinion to confirm the opinion of the Court below,
and to dismiss us with costs.
Dr. Calvert. — I was surprised to hear it said that part of the
goods are not claimed. We have claimed all that were seized,
and it was unnecessary for us to claim anything which was not
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40 HIGH COURT OF ADMIRALTY.
1767 infonned against. The question is, Whether the ship and goods
Bbown are forfeited nnder the statute of Car. 2 ? In a penal statute,
^^Qj^ unless the case laid is entirely confonnable to and brought within
the very words of the statute, the prosecutor cannot obtain a
sentence in his favor. The case must correspond exactly with
the Information, and the least error therein is fatal. Now, in the
present case they inform against the ship for importing into New
York, and prove the seizure to have been made within Sandy
Hook, in the Province of New Jersey. The definition of the
word "import" goes far towards elucidating this question. I
believe their first notion was adopted from a mistake as to the
etymological sense of the word. In the observations I intended
thereon I am anticipated by Dr. Harris.
1 Jac. 2, c. 3 lays a subsidy on all wines and vinegar imported,
and says the duties shall be paid before landing, to which they
would not have been liable without it being specially mentioned.
For if the word " imported " meant ** bringing into port," the
other clause would be useless.
15 Car. 2, Navigation Act, the word " port " is not mentioned,
which shews the statutes meant no forfeiture should incurr unless
the goods were landed.
1 Jac. 2, c. 4, the words importing or landing are used as
synonymous. In the several Acts the Legislature have enumer-
ated five or six words, but never hinted at the word "port"
There is a forfeiture on importing by land as well as by water.
The evil intended to be prevented was carrying the goods to the
French settlements, and from thence bringing them into our
Colonies. 5 Geo. c. 11 will not bear the construction our
opponents give it. In the preamble clandestinely importing and
landing are copulatively used; see Molloy, De juri MariHmOy
b. 2, c. 15, " Of Customs and Subsidies to be paid." European
goods used by the Colonies should benefit this country, not
foreigners. What benefit can accrue to the mother country if
the goods are not disposed of? The gentlemen will not say
we could not alter our destination, and whatever the original
destination was, it was changed, and is clearly proved so to have
been, and that we had no intention to run any goods or to
commit a breach of the law.
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HIGH COURT OF ADMIRALTY. 41
Dr. Marriot. — I would readily take up this question upon the 1767
meaning of the word *' import/' but before that point comes into Bbown
discussion let us be clear as to the matters of i&ct. I admit there j^u^ok.
is a claim for the cargo ; but it is made^ as in all smuggling cases,
generally by the master to cover the owners. It is for the goods
liable to duty, which on payment of duty may be landed. Now
the goods to which the information is specially directed is the
wine and soap, which is prohibited to be imported into Colonies, -
without having been first landed in Great Britain. This is one
of the many attempts of the American merchants to rid themselves
of the Navigation Act It is the characteristic of smugglers not
to have any ship papers. This vessel is exactly under that pre-
dicament. Not a single paper or document has been produced.
There appears neither lader nor consignee. The report at the
Custom House was subsequent to the seizure. K, therefore, the
cargo was liable to forfeiture, it had taken effect before, and the
report was nugatory. An intention is set up, unknown to the
master or any of the crew, of carrying the vessel to the Isle of
Man. The importation was not the consequence of distress. The
ship was beating about. She was two miles within the Hook
when seized ; in no condition to proceed to the Isle of Man, being
so foul as to make her heaving down necessary, and consequently
her cargo must be landed. But supposing the facts as they state
them, why did they not produce the letters ? Their defect in
not producing the more cogent proof diminishes the weight of
what they really do bring. Why is not the second charter party
produced ? The coopers are said to be on board. No man would
pay coopers if he had no design of landing the cargo. It is
most likely Mr. White was the owner of these prohibited goods.
The proceeding of the judge is extremely culpable, and merits
reprehension. A judge, says Plowden, has his private and his
judicial knowledge. The act of the master binds the owner,
because his intent is visible ; that of the owners invisible. There
are two sorts of importation ; t.e., by land and by water. One
may land, another may import. The act of importation is inde-
pendent in its object. It is distinct. Unless the person was to
be surprised in the first act, the importation, the statute could
never take effect. It would be eluded by saying it was not
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42 mOH COURT OP ADMIRALTY.
I7e7 intended to be consmnedy but shipped off again. The definition
Bbown of Stevens is mere sonnise. I might infer that portus respects a
Kb^oh. country as mnch as porta a city. You can't land without import-
ingy but you may import without landing. The importation is
the point. I was surprised to hear costs asked against the Crown*
N.B.— That When a subject sues for the use of the Crown, no costs shall be
Sraeftbe** ^^ given. Suppose the voyage to be intended to the Isle of Man,
Ororonever that citadel of smugglers, it was still a smuggling voyage. The
judge was very erroneous to give sentence and costs upon his
own evidence.
Dr. Wynne. — It is notorious the commodities in question are
the manufactures of Europe, there being no soap or wine in
America. In Prize cases no pleas are given, but instead thereof
interrogatories are settled by the officers of the Crown. The
American Courts have very erroneously adopted that maxim in
questions of forfeiture. In the present case many interrogatories
have been filed, but both parties having acquiesced therein, and
long usage fortifying it, no advantage can be taken of it. Ou
the whole of the evidence the judge gave sentence, and in a very
unaccountable manner condemned the prosecutor in costs, though
the defendants own they had prohibited commodities on board,
which must justify the seizure, though they should not be for-
feited, and though the defendants should exculpate themselves*
The place where the vessel was seized is laid in the information
to be within the Province of New York. Dr. Calvert says this is
a flaw in the information. I see none. One side of the Channel
is New Jersey, and New York on the other. I see what led the
Doctor into this error. It was a Protest made by the judge of
. . . New Jersey. But it did not relate to this ship. K the
objection was material, there is no evidence offered to establish it,
except the inspection of the maps. It is more important to
consider whether the ship was on the high seas. Now Berrian
and Millar prove she was lying within Sandy Hook, and clearly
in the jurisdiction of New York. But, whether it was New York
or New Jersey, it was one of His Majesty's American Colonies,
and having prohibited goods on board, was liable to confiscation
by the statute. I know more of the etymology than to say to
carry into a port is importing, but the true way of considering the
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HIGH COURT OP ADMIBALTY. 43
meaniiig of the word is to see how it has been used in the several 17<>7
Acts. I say goods may be imported without landings i.e., by Bbowh
being brought to a place where they maybe easily landed or brought kbn^yon.
in« In the statutes for regulating the trade and revenues^
&c, there are two kinds of forfeiture : those which are created
by importing goods without paying the duties to which they are
liable^ and those which arise from the introduction of commodities
altogether prohibited. The former must be landed to create the
forfeiture^ till which there is no pretence to say there was an
intention of smuggling. The trade is fair till the laws are
infringed. There is no offence till they attempt to run them to
avoid the duty. The importation alone is sufficient to confiscate
the latter, they having no right to be on board. With respect to
dutyable goods, see 1 Eliz. c. 11, s. 2. The word "import" is
not mentioned, 1 Jac. 2, c. 4, ss. 1 and 12 ; 5 W. & M. c. 7, s. 4 ;
6 & 7 W. & M. c. 7, s. 4; 9 &10 W.i&M. c. 13, s. 8. In all these
statutes some word is added to " import," such as " laid on land,"
&C. As to goods prohibited the word stands single in the
Navigation Act.
7 Geo. 2, c. 30, s. 8 : "After June 24, 1701, no commodity of
the growth, product, or manufacture of the East Indies shall be
imported or carried into Ireland, the islands of Jersey, Guernsey,
Aldemey, Sark, or Man, or into any land, island, plantation, or
colony, territory, or place, to His Majesty or to the Crown of
Great Britain belonging, or which shall hereafter belong to His
Majesty, his heirs, and successors, in Africa or America, but such
as shall be bond fide and without fraud loaden and shipped in
Great Britain in ships navigated according to the laws now in
being as to the several places to which the said goods shall be
imported or carried under the penalty of forfeiting all such
goods, or the value thereof, together with the ship or vessel with
all her guns, tackle," &c.
There is a clear distinction between the statutes of the first and
second sort. 5 Geo. I was made for Great Brittain only, till it
was extended to America by 3 Geo. 3. It creates a new forfeiture,
is extended to customable goods, and gives a power unknown to
former Acts, that of going on board to take security. The neces-
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44 HIGH COURT OF ADMIRALTY.
1767 sity of the case justifies this extension. If it was not aUowed to
Bbowh *^® place with respect to prohibited goods, the Act of Naviga-
Kbnyok. ^^^ would be useless, for as long as the goods remain on board
the ship, the ship could not be affected ; and when they were
landed, how would they appear to have come out of that ship ?
If a vessel comes on the coast, and the master says, I don't intend
to land any of the goods, then no questions must be asked, there
is an end of the Act. But I insist the ship has no business on
the coast. K she comes, she may be seized and brought in for
adjudication, and must justify, if she can, by being drove in by
stress of weather, enemies, or pirates. Have they by evidence
laid any excuse before you ? The owner is not the claimant By
some management he is made a witness. He knew the dutys to
be paid, as well when the ship went to Port au Prince as after-
wards, sugars paying alien duties. When he changed his resolu-
tion, what sort of agreement did he make ? Was not a charter
party as necessary from New York to the Isle of Man as £rom
Hispaniola to New York ? What parol evidence is there ? Where
are the two merchants that would have induced you to believe
there was a change of destination before the ship was on the
coast ? The letters sent to Claxton appear to have been in White's
power after the seizure, yet they are not brought in and exhibited,
from whence I may fairly infer they contained matter which
rendered it improper for them to produce them. Bard and
Mercer's evidence go only to White's declarations. Where is the
consignee in the Isle of Man ? It was their business to produce
him. On their own shewing they have failed in proof of the case
laid before the Court. There is no evidence which they would
have omitted to bring at any expense if beneficial to them. It is
of so much importance to the Americans. It is not true that
they had no prohibited goods on board, the wine and soap being
so, and clearly rendering the ship liable to forfeiture. Declara-
tions have been frequently held good in Prize cases.
Dr, Harris. — I must remind Dr. Harriot that the King never
appeals. The Doctor was surprised at the proceedings of the
judge, and taxed him with great irregularity in being a witness.
A judge may be a witness. Sir Crisp Gascoyne, when Lord
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HIGH COUET OF ADMIKALTY. 45
Mayor> gave eyidence in the case of Elizabeth Canning; he 1767
descended from the Bench to pay that tribute to justice. We bbo^^t
did not read the judge's testimony, as it was not upon oath. KmriroH
There is a difference between a voluntary witness and one that is
called upon to depose. The reasons of a sentence are never taken
down. I doubt not reasons were assigned by the judge. I allow
the ship was at anchor two miles within Sandy Hook when taken.
But that is no port or bay. The witnesses distinguish and call
it a gulf. I allow there were prohibited goods on board (with
respect to North America), but the captain says he did not intend
to go to New York, but to the Isle of Man. It is not to be pre-
sumed she would not give in her manifest if she got into Amboy
Boad. Suppose Claxton intended originally to run the goods ;
¥rhat is that to White who had no concern therein ? But he did
not intend after receiving the aforesaid letters. We have not
exhibited the charter party and bills of lading, because it was
unnecessary. But it is not therefore to be presumed we had none.
The substance of the contents is told on oath, which is [as] strong
as the letters themselves would have been. A man would be very
cautious of sending any ship to the Colonies, if a trifle of contra-
band was to create a forfeiture. Was there any reason for her
coming to New York? I answer there was. She came for
orders, which is suflScient. You cannot on presumption give
sentence on a penal statute.
Dr, Calvert. — I do not see how Mr. White could claim. The
only things informed against are the ship, wine, and soap, neither
of which belong to him. If that is so, why should you presume
him in the wrong, and that he omitted [qy. admitted] it merely
to become an evidence as Dr. Harriot urged ? Dr. Wynne
objects to us for not bringing in the ship's papers to vindicate
the claim. I answer they are not in our power. They seized the
ship, and with it the papers ; the captor, therefore, should bring
them in. If we were caught in an illicit place with prohibited
goods, there is no doubt but they would be liable to seizure and
confiscation. But that is the question between us, whether the
place was illicit or not. It is clear, when taken, she was two
miles off the continent of New Jersey, at anchor. Suppose she
had been coming out of Port au Prince, the goods would not have
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46
1767
Bbows
Kenton.
HIGH COURT OF ADMIRALTY.
been prohibited. It is the landing which creates the forfeiture.
As to the distinction between customable and prohibited goods, I
don't see the conclusion. The Doctor has looked into a few
statutes on the Customs. He allows he has not inspected all.
The Court can't decide on these because it is not said there are
these words so distinguished in all of them. Dr. Harriot said it
was clear they intended to land their prohibited goods because
the coopers were on board. That might be on account of the
rum and sugar, which was in cask, and is admitted to be innocent.
We don't object to their demands of knowing why we were at
anchor within the Hook, but say we gave them a satisfieu^tory
account and yet they seized us illegally.
Sir ThoB. Salisbwry, Judge. — This cause comes before me in a
very lame manner, without any papers, though they are frequently
mentioned by the witnesses. The charter party does not appear,
nor is any reason assigned for not introduceing it. The destina-
tion is admitted to have been originally for New York ; but is
alleged to have been altered. When did this change of intention
happen ? There is no account of it. The history White gives
us is very extraordinary. He sends for a cargo, and then can't
pay the duties. He cannot afford to enter it. Why are not the
letters produced ? White says he saw them in Claxton's hands
after the seizure. The captor, therefore, was not possessed of
them. I think this is a trade which it is highly incumbent on
Great Brittain to regulate and place upon a better footing than
it stands at present. The seizure is suflSciently justified by the
European European goods on board, which I decree to be confiscated pur-
Lcatedk'^" suant to the statute, and condemn the appellate in costs as well
fnd^ajS^ of the first instance as this ; but I restore the ship,
condemned in (Qy. Does the statute leave any discretionary power in the
judge to restore the ship ? Do not prohibited goods create an
absolute forfeiture of the vessel whereon they are laden ?)
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HIGH COUKT OF ADMIBALTY. 47
NOSTRA SENORA DE LA LUZ. ^^^
PBIZE. 4tk 8ess,
Fountain. Crespigny. East. Tmn,
Dr. Wynne. Drs. Ma/rriot and Harris.
Dr. Marriot. — This is the case of a Spanish ship taken with Q. is a ship
many' other men-of-war and merchant ships at the Havannah. ^mp^^
The claimants, as in The Constama (1), insist that being a mer- ^p^^^Sation
chant ship it is comprised within the Capitulation. But the Lords being private
in The Consianza affirmed your decree of condemnation, and said Q. if it is not,
there was no foundation for the distinction. Their Lordships' ^ broa^t
reasons in that case wiU hold equally in the present, which was ^^^^2!^*
on the stocks, and bought of Mr. Kenyon after the seizure. The confiscable
inference therefore is, they did not think it a matter proper for partioular
the determination of this Court. o?tSBa!w? *
Dr. Wynne. — The vessel in question was on the stocks at a
yard called Callipieda, at the Havannah ; two-thirds on ac-count
of Barth. de Montes and Jos. de Yietta, merchants, residing at
the Havannah, and one-third on account of Don Francisco de
Montes residing at Cadiz. After the surrender of the Havannah
this ship was seized as prize by Jn. Kennion (sic), Lord Albe-
marle's agent, who put it up to sale without proceeding to adjudi-
cation, whereupon Montes and Yietta, to prevent the loss that
must otherwise have happened to them, on November 23, 1762,
agreed with Kennion to purchase the hull of said ship, long boat,
and yawl, for 1100 hard dollars of Mexican coin ; 70 quintals of
iron materials ; 36 quintals of pitch and tar, one cable of 18 in.,
one of 8 in., and one of 4^ in., and 20 quintals of oakam, for 2000
dollars ; and to give 250 dollars for the timbers belonging to the
said ship. And it was agreed that Montes and Yietta might
bring what timber they thought proper to compleat the same.
This money Mr. Eenyon received. The same day the purchase
was concluded, viz., November 23, 1762, Montes and Yietta, to
preserve their rights, and being entitled thereto under the 11th
Art of the Capitulation, as inhabitants and residents of the
Havannah, entered their Protest against such sale and agreement.
[(1) See p. 161, in/rat for this case.]
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48 HIGH COURT OF ADMIRALTY.
1767 And, what is more extraordinary, the timbers, which by the agree-
N08TBA ment they were to be allowed to bring to compleat the ship, were
D^S^Lrz. aft^rw^ds seized and taken from them.
29 Dec. 1764. Montes and Vietta gave a claim for two-thirds
of the said ship, her boat, yawl, tackle, &c. ; two-thirds of 70
quintals of iron and other things schedulate under the Articles
of Agreement as what were not liable to confiscation, but ought
to be restored.
3 July, 1765. Tyndal appeared under Protest.
10 May, 1766. His Protest was overruled and he was assigned
to appear absolutely.
4 Aug., 1766. Tyndal returned the usual Monition prayed by
him.
9 Aug., 1766. The cause was assigned, and now stands on the
admission of Fountain's claim.
The opponents, I understand, mean to lay a great stress on the
Lords' determination in The Constanzay which differs greatly from
the present case. The Constanza was admitted to be a merchant
ship, which, as well as her cargo, was the property of inhabitants
of the Havannah, and claimed by them under the 11th Art. of
the Capitulation. But she was avowedly lyeing in the harbour at
the surrender. Now the head of the Art& of Capitulation run
thus : *^ Articles of Capitulation agreed upon between, &a, for
the surrender of the city of Havannah and all its dependencies,
with all the Spanish ships in the Harbour." Art. 3 ordered that
all ships in the Harbor of the Havannah shall be delivered up, &c.
(N.B. — A doubt having arisen who should open, it was said the
ordinary course of the Prize Court for the Captor to begin arose
from this, that the Monition issued at his sute. Here the Moni-
tion issued at the sute of the Captor, therefore his Council most
begin.)
The Lords therefore decreed "That it appearing from the
Articles of the Capitulation that all the Spanish ships in harbor
were expressly to be delivered up witJiout restriction or exception,
their Lordships dismissed the Appeal, and confirmed the sentence,
rejecting the claim, and condemned ship and cargo as Prize
delivered up by the Capitulation." The ship in question is
admitted to have been in the Company's yard, and not in the
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mGH COUKT OF ADMIRA.LTY. 49
liarbour of the Hayannah, and it is not denyed that two-thirds was 1767
the property of the claimants. Art. 4 relates only to artillery noctba
stores, ammunition, &., belonging to His Catholic Majesty, ^^^^luz.
Art 11, under which we claim, says, " The inhabitants of the city
were to be left in free possession of their effects, moveables, and
tenements of any kind or quality whatsoever." By Art. 13 they
were absolutely at liberty to remove their effects to any part of
the £ing of Spain's dominions in vessels at their own expense.
It is hoped, at all events, the timbers which the captors agreed
should be brought to the yard for finishing the ship will be con-
sidered as effects of the inhabitants, and that the seizure thereof
will not be justified.
N.B. — The opponents insist on Art. 4, whereby " All the artil-
lery stores and ammunition and provisions belonging to His
Catholic Majesty shall be given up to the English."
Brs. Manriot and Harris declining to speak on behalf of their
client till the reply. Dr. Wynne proceeded.
Dr, Wynne. — The reason I was desirous of beginning was that
I might have an opportunity of replying to what the gentlemen
advanced; for I was aware they did not intend to open their
mouths. When the Havannah surrendered to the superior force
of the British Crown, the Capitulation was framed on that noble
principle, for which this country is so justly famed, of treating
the conquered with tenderness and compassion, and securing
individuals in their property as soon as the sword was sheathed.
This, Sir, was the general purport of all the Capitulations
throughout the last war. My clients were merchants, inhabitants
of the Havannah. They were in partnership together, in con-
junction with a third person resident at Cadiz, who being no party
to the Capitulation could not claim. They have therefore omitted
to claim for his one-third. The private property of Montes and
Yietta is clearly established. The contract with Kenyon shews
they had a pre-emption, such as it was. The King of Spain had
no right whatever. They submitted to the sale on account of
Mr. Kenyon's despotic proceedings. The mere motive was that
they saw all opposition nugatory and ineffectual. But after their
agreement with Kenyon they did not acquiesce. They entered a
Protest before a Notary Public ; another before a Spanish magis-
£
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50 HIGH COURT OF ADMIBALTY.
1767 trate ; and gave in a memorial to General Keppel. The Protest
Nostra ^^ ^^^^ *^ ^^ against their own act. I agree, it is. But the Court
Senora ^22 consider the very particular circumstances under which it
was made. They had remonstrated in the strongest manner to
Kenyon before the purchase ; and finding that of no efltect they
bought, to avoid a greater loss, hoping to obtain justice firom the
Courts of Great Brittain. The 11th Article of the Treaty secured
all private property, except in one case, which 1 shall mention,
and there is legal evidence before you that this was private pro-
perty. People with arms in their hands neither know nor observe
forms : but Courts of Justice will review the proceedings with
coolness and candour. They have been treated in a manner
neither the Court nor the Government would countenance, and
ought to receive a compensation.
[In] 1764 they were forced to commence a sute before the
Spanish Governor, when the English had, in a manner, left the
place, after peace was proclaimed. In so doing perhaps they
acted improperly, and Count Kida did right in rejecting the
application. The case of The Constanza is not applicable. That
was a loaded merchant ship, on float in the harbor of the
Havannah. There was an equitable principle in favour of The
Constanzay but by the letter of the Capitulation there was no
ground for a restitution, and she w£^ therefore condemned. The
words are general, " All ships in the harbour." There is no
restriction to those belonging to the Catholic King ; but this was
not a ship in the harbour. On that they have grounded their
Protest, and objected to your jurisdiction, because she was not
afloat. There is a difference in the demand and answer to the
2nd Article. Now by all rules of construction the words of it
cannot refer to the preceding articles. The answer must be con-
formable to the demand, viz., that " it must be restored to His
Catholic Majesty," or express words must be inserted to vary it.
A Capitulation should be strictly taken against the captor accord-
ing to the Law of Nations ; and so said the Lords Commissioners
of Prizes. The persons who are to receive law ought to have
every favourable interpretation the case will admit. If the Capi-
tulation was to be construed as they contend, it would be attended
with great incertainty, as whether timber or provisions would
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HIGH COURT OF ADMIEALTY. 51
be nayal stores. TheaflSdavits are very insufficient. The timber 1767
was seized subsequent to the Capitulation, at which time a nqstba
Hayannese could have built a ship, as he was then a subject of ^g ^^^^
Great Brittain. In a word the seizure and confiscation was an
act of violence and oppression.
Dr. Marriot. — I would pay all due honor to so brave a
nation, and I admit the Capitulation is to be construed strictly
for the benefit of the vanquished. Is the line drawn at the head
of the Capitulation ? That ships shall be afloat in the harbour ?
The dock was in the harbour. The Demand and Answer may be
taken together ; the former not as a binding, solemn Act, nor as
part of the Answer ; but to aid the construction of it. There is
a direct exception to what is distinguished by the Doctor with
respect to private persons and His Catholic Majesty. A paper is
no proof, being merely annexed to the claim. The Protest goes
no further than to say the ship and timber was seized at the
same time. The claimants should have brought proof that the
timber in question was procured to finish the ship subsequent to
the sale. I may say the timber was* secreted in the city, as they
have not shewn it was bought after the Capitulation. The
Protest of a party in his own cause is no proof. The affidavit
only introduces the claim, but is no proof of it. The Legislature
of this country have provided that nothing in questions of Prize
shall be considered as evidence but what arises out of the ship
itsell Captors are shut out from bringing in papers firom other
ships, which, if admitted, would cause the condemnation of many
neutral ships.
Dr. Harris. — On reading the affidavit annexed to the claim I
see it is made by an attorney of an attorney. This we might
have objected to before, but did not, in order to meet them on
the question itself. Our declining to speak first cannot preclude
us from having the last word. It would introduce strange con-
fusion and wrangling if a reply was to be sufiered. It is sworn
no force or violence was used in taking possession. Our witnesses
say they delivered the ship up. I mean the Spanish officers.
If, therefore, these parties have been aggrieved, the Spanish
officers should be the object of their displeasure. Mr. Kenyon
favoured them by allowing them what he was possessed of.
E 2
87745
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52 HIGH COURT OF ADMIRALTY.
1767 Montes and Vietta may be the proprietors, but they do not
Nostra appear properly before you. The claim being verified only by
Dif LA^Luz. ^^^ ^^^^ ^^ ^^^ attorney of an attorney, you could not restore the
goods on the evidence before the Court, though you could not
condemn them. In such case they must begin de novo. It is
caUed a ship as having all the component parts. Their narrow
and limited construction of the word " Harbour " is only fit for
Q. Who are an attorney in a Pie-Powder Court, not for Civilians debating on
a Capitulation. Supposing naval stores to be legal Prize, these
must be liable to capture, as they consist of large quantities of
pitch, timber, and other articles which are clearly included in
the 4th Article. But, says the Doctor, this relates only to stores
belonging to the Spanish King, not to subjects of His Catholic
Majesty. They allow Francisco De Montes, as a Spanish subject,
can't claim ; but he is a private subject. This is a contradiction.
None: as he The 11th Article, which mentions **A11 the effects, moveables,"
resided at ^ , V , , . , , ,
Cadiz, 80 was &c., must be understood s^ connected with the 4th Article, viz.,
SSo^da^itola- " -All " except the naval stores. You, Sir, sit to hear what is Prize
and what is not Prize; not to determine whether Kenyon did
right or wrong.
tion.
Sir Thomas Salisbury^ Judge. — This cause comes in a particular
manner from a Spanish Court, with only dicta. The rule is that
all papers should be brought in on oath. They call her a ship.
She then stands in the same light as if she came under the title
of naval stores. The whole was delivered up to Kenyon.
Whether he did right is not the point, but whether it is a Prize
or not. It is either a ship or stores ; but rather the latter, as she
had cordage, pitch, &c., belonging to her. The claimants cannot
be real Spaniards. If they were, they would [have] been satisfied
Ship, boat, with the determination of their own Court. I condemn the ship,
demned as boat, yawl, and materials (which are claimed to be within the
Capitulation) as Prize.
Prize.
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HIGH OOUKT OF ADMIBALTY. 53
DIXON V. WARD. 1767
Bargrave. Oostling. 8rd Sess.
Drs. Cottier and Wynne. Dr. Calvert.
Dr. Collier. — The Question is. Whether a Commission shall go Q. Whether a
to Bennuda to examine witnesses on Gostling's Allegation ? shall go to
Bargrave objects that only two witnesses have been already ^^Satioo^
examined and interrogated ; that the cause being summary should ®^ wltneseee?
not be delayed by such a Commission, nor the term probatory
prolonged. OosUing, Junr., says it would be less expensiye to
bring the witnesses here. He alledges that our 6th, 7th, 8th, and
9th Articles are such as cannot be proved but by the Commission
to Bermuda ; viz., the discharge by the Governor of Bermuda and
the neglecting to take a cocket, whereby the vessel might incur «• Act.
a forfeiture.
Dr. Calvert. — We are before you praying a Commission to
Bermuda, which seems to be matter of course where the witnesses
are not at hand. Wherever it is alledged by parties that witnesses
are out of the Jurisdiction, a Commission is always granted. The
Proctor on the other side says he has examined two witnesses
only. Why insert that word ? If he could prove su£Sciently
what is that to us ? We had a right to interrogate. That is the
usual practice, therefore no bar to our prayer. They state a fact
which proves we can't prove our point by those four witnesses,
for they are said to be on board all the time. Many facts are
alledged which from that circumstance could not be proved by
those on board. It is the first time an adversary prescribed to
the other what witnesses were necessary. They have produced
ten witnesses on their allegation. Why then should we be
debarred examining whom we think proper on ours? I allow
there ought to be no delay in summary causes. If it is a neces-
sary delay the Court will not stop it. A twelvemonth may be
as necessary in one cause as one month in another. Our allega-
tion might as well not have been admitted, as to debarr our
examineing the necessary witnesses. It would be hearing the
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64 HIGH COURT OF ADMIRALTY.
1767 cause ex parte. The papers, &c., are at Bermudas. We have
Dixon only two witnesses. We may not chuse to rely on them, for they
Ward ^®^^ ^^ board. They might not be conversant of every fact we
want to prove.
Dr. CoUier. — We have examined two witnesses. They, by
laying a long allegation before the Conrt, may delay the hearing
of the cause for a sailor's life. They may lay the facts all
over the world. If the facts are contrary to ours, they are admis-
sible. A sute may be everlasting if Commissions can be prayed
on suggestion, which an allegation is, and no more. A Commission
for a sailor's wages is not a matter of course. It never was
asked before. It differs from other cases ; and in their prayer
they don't confine it to Bermuda, but desire it may be extended
to other parts of the West Indies.
Dr. Wynne. — I don't know how the witnesses would be got
together at Bermudas. It is to me a new doctrine that a Com-
mission is a matter of form ; and of course would be a reflection,
if, after the long dependency of a cause, parties could have such
an opportunity of delaying it for perhaps several years longer.
Seamen's causes are held to be summary, and more so here
than in any other Court. Parties are not at liberty to examine
what witnesses they please, no more than to give an independent
number of pleas. The Court will check such a practice. On
these articles I see no use of the Commission. They don't alledge
in the Petition that any of the persons on board the ship are
now at Bermudas. All you can expect from the Governor, &c.,
at Bermudas must be their acts, grounded on what Bailey laid
before them, which will come out as well by Bailey's examination
having proceeded from his information, and the persons on board
can speak to these facts. What was done by the Judge and
Custom House Officers was ministeriaL The ten witnesses we
examined were examined in a fortnight, and it was for the
characters of Murray and Dixon.
Sir Tho$. Salisbury, Judge. — In this case what is the Commis-
sion to do ? Every transaction alledged happened on board the
ship ; all the misbehavior, breaking the locks, drunkenness, &c.
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HIGH COURT OF ADMIKALTY. 55
What has a Judge at Bermudas to say, but that he knows nothing ? 1767
If the . . . were found empty, it is not material that the com- dixon
plaint was made to the Governor. It is usual to pray the ^^
Commission when the allegation is given in. I now refuse one. rj^Yie Commifl-
sion to Ber-
mudas re-
fused. '
"FREEMASON," JOHN ROBINSON, Master v. THOMAS 1767
BISHOP, Esq., Commander of the "Fortune," Sloop. TriruBye
Day,
FORFEITURE. ^^V 15.
Major. Oostling,
Drs. Harris and Calvert. Drs. Harriot and Wynne.
Dr. Harriot. — ^This ship and goods was taken in the harbour 0- Was there
of Boston, after she had passed the Castle on Saturday evening, tion ?
22nd October, 1763, by the Lieutenant of the Fortime, sloop, and %,^lTeZ^
seized as forfeitable. The Respondent, Capt. Bishop, is the<'*^^°'^^''
Commander of the Fortune^ and is likewise an Officer of His
Majesty's Customs commissioned to seize prohibited and uncus-
tomed goods. 25th October, 1763, the Respondent gave in an
Information or Libel in the Vice-Admiralty Court at Boston
within the Province of Massachusets Bay, suggesting that he
seized, as forfeited to His Majesty the Governor of the said Pro-
vince and himself, the said brig, and cargo consisting of 182
casks of wine, 20 casks of vinegar, 60 casks of brandy, 25 cases
of spirits, 105 cases of wine in bottles, 1 box of handkerchiefs,
1 peice of silk, and 1 peice of black velvet, being all the produce
and manufacture of Bourdeaux, or some foreign country in
Europe, for that said goods were on 22nd October as aforesaid
imported into Boston in said brig, not having been bona fide
shipped in Great Brittain nor exported from thence, nor thence
imported into Boston, contrary to the statutes in that case provided ;
and for that between the 1st and 22nd of October aforesaid, sundry
other casks, as well as cases of wine, casks of brandy, and boxes
of cambrick were imported in said brig into Boston, then clandes-
tinely and secretly taken out of her and landed, and before
unlading the same the master did not make known to the Governor
or proper officer the said brig's arrival, or said master and com-
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56 HIGH COUBT OF ADMIEALTY.
1767 mander's name, nor shewed said brig was built and navigated as
ThsFbbb- in such cases the law requires, nor delivered a true and perfect
MASON. ijiY^ice of her lading, but landed the said goods without so doing,
contrary to the statute, and thereby became forfeited,
23rd October, 1763, the information was allowed, and the brig
and her cargo ordered into custody. Three claims have been
given in, but none upon oath.
1st November, 1763, an appearance for the claimers was given
in. First claim was given by William Hoskins, of Boston, and
for John Bobinson, the master, for ship, boats, tackle, &c, as
owners. They insist she is not forfeited, for that none of the
goods set forth in the libel were imported into Boston, nor any
goods unladen from her. Second claim was given by Captain
Bobinson for the Sieur Bellonan, of Bourdeaux, and . . . Cossart, of
Eustatia, for them or one of them. He claims 182 casks of wine,
20 casks of vinegar, 60 casks of brandy, 25 cases of spirits, 105
cases of wine in bottles. Confesses the said goods were shipped
at Bourdeaux by Bellonan, but contends they were consigned to
Cossart. Suggestes he chartered the said ship at Bourdeaux to
Bellonan on freight to proceed to Eustatia, there to deliver her
cargo to Cossart, but after it was put on board he obtained leave
of Bellonan to touch at Boston to acquaint his friends and owners
of his destination to Eustatia. He accordingly entered the port
of Boston for that purpose, and immediately reported his cargo
to the Officers of the Customs at Boston, where he came from and
whither bound. Insisted he never broke bulk or landed any of
the cargo at Boston, therefore prayed the goods claimed to be
free from seizure. Third claim is made by Bobinson for 33
dozen of handkerchiefs, 1 peice of silk, and 1 peice of black
velvet, as his own property. Insists he purchased them at Bilboa,
never imported them into Boston, but intended to carry them to
Eustatia. Made true report of them to the Officers of the
Customs; therefore prayed them to be delivered to him with
costs.
23rd November, 1763, William Haswell, lieutenant of the
Fortime, (who seized the ship by the Informants* directions), and
, N.B.— This two others, were sworn in Court and gave their evidence in
Y^*^^*^|f!^ The claimants objected to this preparatory evidence*
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HIGH CX)UBT OF ADMIKALTY. 57
but withdrew their objections, and then all the evidence was 1767
published. Then the master's and mate's journals were produced thb Frek-
ia Court, and William Sheaf deposed in writing touching Eobin- "t^soN.
son's reporting the ship ; and extracts from the said journal as preparatory
taken by the Captains Atkyns and Wyar, and an extract from ***«*"^®"y-
the mate's journal was also brought in.
24th November, 1763, James Wimble, Ebenezer Bobinson,
Joshua Williams, and James Dacres gave evidence for the
claimants.
25th November, Captain Bishop's Commission was produced and
read, as also Bellonan's letter permitting Bobinson to touch at
Boston (this is merely ostensible) ; the French clearance and
Permit from the Custom House at Bourdeaux ; also the manifest
of the cargo delivered by Captain Bobinson at the Custom House
at Boston, and a letter sealed, directed to Cossart at Eustatia.
(N.B. — All these papers appear with the face of fraud.) The
claimant then produced two bills of sale of the brig and her
register, and the cause was argued.
6th Dec., 1762, the Judge decreed the ship and cargo to remain
forfeit; ordered the same to be appraised and sold, and the
money to be paid into Court, subject to further order; from
which the claimant appealed. The inhibition was prayed 15th
November, 1764, but never served on any of the parties. The
ship and cargo sold for £1774 4a. The papers are irregularly
introduced, and not on oath, and do not appear to have been on
board when the ship was seized ; which appears to be a general
French smuggler. Mr. Haswell, the mate, is strongly corroborated
by their witnesses.
Dr. Harris. — This ship was seized by Captain Bishop, who is
said to be a Custom House 0£Scer; she is libelled against as
forfeited under the statute. The goods are claimed forBellonan,
a merchant of Bourdeaux, and for Cossard (aio), the consignee at
St. Eustatia. You will find she is a common carrier ; that on
the 18th of May, 1762, she was built at Boston in New England,
and was by Bills of Sale transferred from one English subject to
another, till she came into Bobinson's hands. In March, 1763,
she was laden with fish for Spain; thence went to Bourdeaux
with salt, and there was chartered to Bellonan for St. Eustatia.
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58 HIGH COURT OF ADMIBALTY.
1767 The master had leave to call at Boston to take directions from
The FiiLt;- his owners what course he should afterwards take. You will find
MAaov. ^gy understood at Bourdeaux that the ship was bound to St.
Eustatia, but was to touch at Boston, and that the stay there was
limited to a very short time. For in the letter of 13th August,
1763, from Bellonan to Robinson, he writes : " I desire your stay
may be short, not above three days at Boston, and then to proceed
on your voyage." We have exhibited a clearance from the
French Custom House to St. Eustatia. She sailed without
apprehensions, intending no importation. One of the owners
acquainted the collector of the Custom House, (who has deposed
to the truth thereof), that he had a ship coming up which was
chartered to St. Eustatia, but was to touch at Boston. You have
Captain Bobinson's oath that no bulk was broke. Their witnesses
speak to opinion only, and eight days after the bulk had been
broken. The crew of the Fortime had been there some time. The
inference would be that it was broke by them. But there is no
evidence of breaking bulk, so as to infer a landing and importing.
The stowage is French, between which and English there is a
manifest difference. Boards and ropes are obliged to be put to
keep them steady. They will loosen and give an appearance of
bulk being broken ; but it was owing to the manner of packing
only. It is a question of fact, Whether the cargo was landed ?
It is a question of law. Whether Captain Bishop was properly
authorised? And ywery. Whether a ship coming openly and
boldly in this manner, shewing no intention of acting contrary to
law, can be adjudged forfeited ? And whether importation with-
out landing will forfeit the ship and cargo ? It must appear an
innocent transaction. Avowedly coming up to Boston is the
strongest presumption. It is impossible to suppose she should
run goods. A ship hovering aims at running, but it is never
done openly. It is impossible she could come to enter prohibited
goods. She could only come to receive directions from her
owners. The Custom House will give you a permit to go out, if
the ship has not broke bulk, on seeing the invoice and that part
N.B,— Shr is customable and part prohibited. What presumption arises
Taj iiDilcr o 1 ' • 1 /» 1111
Ge^Frgo'a from the captain answering the fort, "that he was laden with
Srteento^ coals from Newcastle," but that he might [be] suffered to pass
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HIGH COUBT OF ADMIBALTY. 59
tinmolested ? He was then going to enter these goods, not for 1767
sale, but for exportation. If it is true that Hoskins did offer Thb Fbbe-
Haswell, he was in the right to prevent being stopped. Will you >«a«>n.
call Mr. Hoskins and his friends drinking six bottles of wine, a
breaking bulk, within the statute for merchandize ? Their objec-
tion is that from the inspection of the packing it appears bulk was
broken. The evidence is that the stowage was originally loose,
that there was no bed for the casks, &c., and they were obliged
to put ropes to keep them steady ; on making land they were
taken away for use, which caused an appearance of bulk having
been broken ; but it does not from hence follow that anything
was taken out. At most it could only be presumptive evidence,
not positive. There was not even an attempt to land so far from
an actual landing. I have mentioned all they can object, and all
the foundations of their presumptions. Our papers would only
shew the ship was bound from Bourdeaux to St. Eustatia, a French
Dutch port, and touched at Boston by leave of the freighter, not
to land the cargo. If I thought the law had been determined in
the New York, the evidence and judgment grounded on it is
very different in the present case. The statute meant an im-
portation with landing. There are statutes which say certain
goods shall be paid for before they are taken out of the ship, but
then there must be an intention to land them. 5 Geo. 1 says : " If
any freight .... 15 tons." This shews that without this statute
even so small a ship would not have been forfeited, and now no
other ship would, merely by bringing into port An o£Scer may
go on board and bid the ship go away, and on a refusal she may
be seized, but not before. Bringing goods as merchandize is
the crime. Mollatf, c. 15, b. 2, p. 365, " To break bulk." Hardres,
358, HdUon v. Baworth; Vaughan. . . . The question was on
payment of duty for wax wrecked on a gentleman's estate,
whether wrecks pay duty? Goods are properly merchandize,
when sold or intended to be sold. Hale's was no obiter opinion,
but arose from the case, that for goods not imported by way of
merchandize no custom is due, unless some act is done by break-
ing bulk, &c. Nothing, say these Judges, shall be an imputing
but an overt act. Eobinson swears positively no bulk was
broken. Mottot/y b. 2, c. 15, p. 365: Every merchant shall Fide the Book
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60 HIGH COUKT OF ADMIRALTY.
1767 have free liberty to break bulk in any port (allowed by law), and
The Fheb* to pay custom and subsidy for no more than he shall enter and
nAflON. land, provided that the master or purser of such ship shall first
make declaration on oath before any two principal officers of the
port of the true contents of his ship's lading, and shall after
declare on oath before the customer, collector, comptroller,
surveyor, or any two of them, at the next port of this kingdom,
when his ship shall arrive, the quantity and quality of the goods
landed at the other port where bulk was first broken, and to
whom they did belong. It is agreed the rum may be imported
into the American Colonies from the French islands on paying
an extraordinary duty.
N.B. — On an objection made to reading the letters, &c., as not
evidence, it was argued by the council.
Dr. Marriot. — ^Interrogatories filed on both sides have been re*
jected by the Lords of Appeal, who have determined that, where
there is no evidence on the standing interrogatories, there is no
evidence before the Court, and the causes have been dismissed for
want of evidence. No paper can be read without an affidavit
that it belonged to the ship.
Sir Tho8. Salisbury. — I can't receive these letters without an
affidavit.
Br. Harriot. — The claimants don't say whether the goods are
the property of Bellonan or Cossart. There is a stand {sic) com-
mission from the Treasury to grant warrants. The package must
have been English, for the mate, &c., laded the ship. In the case
of the New York, the cargo was not all prohibited ; and if I may
enter into your ideas, it was on that ground you restored the
ship. There was no dutyable goods which might be brought in.
Henderson viewed it with the officer of the Admiralty. Capt.
Bishop viewed it the day after, and the hatches were sealed up.
They have taken away every paper, subducted persons. Whether
the goods are dutyable or not^ they must be brought in here, and
hence exported to the Colonies.
Dr. Wynne. — This is, in my apprehension, a sheer question of
fact, because in New York the question of law was determined.
In a few words, the case was this. It may be said it was under
the statute, but the ship was released. I answer the determina-
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HIGH COURT OP ADMIRALTY. 61
tion of releasing the ship was founded on there being but a small 1767
quantity of prohibited goods, and that it made a favourable case* theFbeb-
Your opinion was very strong, that ships would for the future be ""^son.
forfeited. This cargo was of the same quality, only it comes from
a French colony. One gentleman said you condemned it because
there was a small quantity, and this is all prohibited. With
respect to customable and uncustomable goods, their being in that
place is a breach of the Act of Parliament. If you can take off
the necessary implication, then there would not be forfeiture.
2 Q. Was there an importation ? Was there an excuse for it on
the evidence ? A ship can't come into port, stay as long as the
master pleases, and then go away. Before they were seized, they
had anchored; they had sent to their owner; he had been on
board before the seizure. There is but one witness who says the
master ever told him where the cargo was to be delivered. Does
the Government place a garrison to receive a false answer? Was
that justifiable ? The officer of the man of war asks Hoskins
where the captain b ? He answers, at Boston. He asks where is
the mate. He says, I am he. He desires to look in the hold ; is
told the master has the keays. It is proved the captain was not
ashore, so that there is a series of lies. The master was going on
shore, say the gentlemen. Perhaps he might, and did not chuse
to be seen. He probably went off with the papers, for a boat is
deposed to be in tow, and he got in directly. A concealment of
papers is a ground to presume everything against them. Was
the master under the orders of his owners at Boston, when he
was charted by a man at Bourdeaux who had a very considerable
cargo ? They foresaw they should want water, and the ship would
leak at Bourdeaux, yet they chose to lengthen the voyage. It is
inconsistent ; for whoever has wine on board won't let it stay a
moment longer in the ship than can't (sio) possibly be avoided*
Bourdeaux is in 45° N.L. ; Eustatia, 17°. The run from Boston
to Eustatia, after about 4°, they get into the trade winds. A
voyage from Boston to Eustatia by Boston will take up double
the time of one directly to Eustatia. Could there be so simple
a pretence ? It is pretty plain from the complexion of the voyage
it was to end at Boston. The mariners were natives of Boston.
They were got home. There was a clear importation, and nothing
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62 HIGH COURT OF ADMIRALTY.
1707 to take it off. The owner went, indeed, the next day to the
Tm Free- Custom House ; but they had received advice of the condition
MASON, ^g gjjp ^^ jj^^ j^ might be after the seizure, and most likely
was so. There is no evidence of the fact that they actually did
land any of the goods, but there is reason to believe that they in-
tended it, and that Hoskins had the whole management of the
voyage and of the ship and cargo.
Sir Thomas Salisbury ^ Judge. — There is a great deal of evidence
in this cause. The statute is very plain. K it is not put into
execution, it had better be annihilated. They knew it was a pro-
hibited cargo. The men did not know of going to Eustatia. They
went to Nantucket If they had proved they were necessitated
to come into Boston, it might have been of some advantage to
genteiiiie them. No papers have been brought in. I affirm the sentence
ooiti. of the Court below condemning the ship and cargo, with costs.
N.B. — It is not usual to give costs in the first instance, without
an adhesion.
I7g7 HOLLAND V. THE MONEY ARISING FEOM THE SALE
B^tDay. OF THE "ROYAL CHARLOTTE."
WAGES.
OostUng. Jenner,
Dr. Wynne. Br. Harris.
Q. Can a Dr. Harris. — I am council for Marmaduke Johnson, who is a
pays the Creditor by assignment of the ship Boyal Charlottey from Thomas
T^^hy tZ^ Dover Hopkins, the owner, for £126 8s. OostUng arrested the ship
iimrinere ^j^ behalf of the mariners, who sued for their wages. The Court
for the moD^ ordered her to be sold, and the produce thereof to be brought
numo?'^ into the Registry. The master having paid them, a fresh action
toone^y^ftrising ^^ brought by OostUng on his behalf, and the present question
frnra the siiie jg "Whether the master can sue in his own name for money arrested
of the all ip bo T«it_ •/•jot
dLiiirered out in the cause of another person whose claim he has satisfied r I
try*to the^^^' must insist you can't part with the money out of your Registry,
aawgneeef tbe because it is matter of account between Holland and the owner.
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HIGH COURT OF ADMIRALTY. 63
Mr. Holland, as master, could not come originally and sue in the 1767
Admiralty for his wages ; so neither can he sue by representation Holland
of the mariners- He can't proceed against the money merely pno^^g ^^
because it is lodged here. You will not assume a jurisdiction ^^^^ of the
which does not belong to you. You would not do that which the lottb.
Court of Appeal, or the Temporal Court would immediately set Vide Portes-
aside. The master can't sue because he trusts only the owners, cl^ in^* ^
whereas the mariners trust the ship. t^^'r^^
Dr. Wynne. — Jenner first appeared for the owner, and then ▼• ^^f^^
proceeded no farther. When Holland entered the action why
was not the Prohibition applied for ? He was known to be the
master then. You are now desired to prohibit yourself. K it
comes from a superior power you must submit, but till then you
will use your discretion. The use of Acts was understood to be
to apprise the Court of the reasoning. But I refer to the Act. I
deny the consequence that, having a lien on the ship, he had a
lien on the money. The owner, Hopkins, assigns the ship for
security for a sum of money. Whatever his right might be, it
was subject to the prior right of another. Jenner has a sute for
breach of covenant against Hopkins for engaging what was pre-
engaged.
Dr. Harris. — The ship is hypothecated unless the money is
paid. There is a limited time for the redemption. Why does
not Holland sue the owner ? Then the owner would come and
take the money out of your hands. Comeing by letter of attorney
is comeing in person. You can't say whether the money has
been paid or not ; a jury can judge of that. We only desire you
will retain the money till it is demanded by a proper person.
Holland can compel him by an action at law. We want to keep
it here till we can proceed elsewhere to obtain a proper authority
to take it. Our not applying for a Prohibition was out of respect
to the Court.
Sir Thomas 8alisbwry, Judge. — I defer giving my opinion till
the next Court.
Bishop, Deputy Begistrar, said the practice had been for
captains to proceed against the money arrested by others till the
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64 HIGH COURT OF ADMIRALTY.
1767 owner appeared^ but then there was an end of that mode of pro-
HoLLAND ceeding.
^ ^- ^ N.B. — The Judge, after deliberation, overruled Mr. Jenner's
PBDCKED9 OP ^ ' '
8ale of the Protest ; who then appeared absolutely.
LOTTE,
17G7 THE KING V. BARNES, Master of the Merchant Ship
MicJ.T.nn. "MINERVA."
GoQtUng. Jenner.
Dr. Harris. Dr. Wynne.
Q. Is Dam^ Dn Harris opened his side of the question in my absence.
an English ^- Wynne. — This cause is brought against John Barnes for
Swb'thJt foisting Ulegal colours.
a foroigiKif A warrant was extracted by Crespigny, and Barnes arrested.
»tj EiiKiifih Bail being given, Jenner appeared for Barnes and prayed articles.
ni^plfiS 2 Sess. M. T. 1766, Oostling exhibited, as before exhibited by
for wearing Crespigny, and gave Articles, which were, 3 Sess. M. T. 1766,
AD improper r ^ i7» o ^ ? '
flag 7 Is an admitted.
King in Coun- 1 Art. pleads that John Barnes, a natural bom subject of Great
i'n^/^ct^^'to Brittain, was in May and June, 1766, master of the Minerva, then
mi5tclmtit belonging to and in the service of and navigated by the King's
wear certain subjects. That by the laws of the realm he, as such, owes allegiance
^enttoiiuth^ to King George the Third, and to all Regulations established
d^dmiS?tT *^ Council, more especially [those] which relate to the King's
to pnnish for service at sea. 2 Art. : That by the 4th Art. of the said Instruc-
a breaon of "
auch order? ttons, under the head of Colors, it is ordered that merchant ships
are to wear a red ensign with the Union Jack in a canton at the
upper end near the staff, and a white jack with a red cross, called
Ord, Krga- St, George's Cross, passing quite through the same. 3 Art. : By
]iLUon» and _ . , « i . i i,
Instruiitmns the 7th Art. of the said Instructions, the King forbids all masters
Hb^i^ji'siy'^ ^^ merchant ships, as also of all ships employed by any public
eervioe BijieA. ofli^e, to wear pendants, or what may be taken for them; and if
1757, 9th Ed., any shall wear flags, pendants, and other colors, contrary thereto,
8bftrp (pur- the captains and other ofiScers of men of war are to seize the
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HIGH COURT OF ADMIRALTY. 65
coloiSy and retnrn the names of the master, &c., of the ship to the 1767
Secretary of the Admiralty, with aflSdavits of the facts by two i^i
witnesses, in order to their being proceeded against in the Court babnes.
of Admiralty. 4 Art. : That on Saturday, the 3rd of May, 1766, ^^^^ ^ ^^
John Barnes in the Minerva near the Port of Charles Town in S'^®'.^,^.*^
Oounoil, lOth
South Carolina, on the high seas within the jurisdiction of the Feb., 1747).
Court of Admiralty, near to and in sight of several of His Chap, of
Majesty's ships of war, particularly the Tryal^ sloop, James Wal- Art ^ Mer-
lace. Commander, did, in open violation of the said Instructions ^to weSra
and in contempt of His Majesty's colors and authority, and of the '^jf!??*^'
right of sovereignty of the King, his Crown and Dignity, and of Union Jack
the duty owed to HJs Majesty, hoist a Pendant at his masthead, at th^np^r
and other colors which ought only to be worn by men of war. ^^^^^nd^
Whereupon Alexander Fordyce, Lieutenant of the Tryaly desired ^^i*e J^
Barnes to strike the Pendant; instead of which he, with the cross, oom-
masters of six other merchant ships, accompanied by a mob of the gt c^^e's
inhabitants of Charlea Town, dared Fordyce to come on board to ^^JE^^*^?
strike said Pendant, and threatened Fordyce's life if he came on the same,
shore. 5 Art. : That John Barnes is a natural bom subject of
Great Brittain. 6 Art. : That John Barnes has offended against
the 4th and 6th Articles aforesaid, and ought to be punished.
GosUing examined three witnesses on his articles, Alexander
Fordyce, Nathaniel Storey, and John Bond.
Fordyce says that in May, 1766, he was Lieutenant of the
Trtfoly James Wallace, Commander, stationed at Charles Town,
South Carolina. That the Minerva, John Barnes, master, was
then there. That about the 4th of May deponent observed the
Minerva had a Pendant flying at her mainmast head, and had also
other flags (but what they were he can't particularly specify)
flying at each of her other mastheads. Whereupon deponent
ordered a boat to be manned, and directed William Snell, master's
mate of the Trt/ai, to go alongside said ship and compel Barnes
to strike said colors ; which was done. The colors the Minerva
then wore were illegal, and contrary to the King's Instructions.
Examined 12th June, 1767. — Storey was master of the Trtfal
in. May, 1766, stationed at Charles Town. The Minerva, John
Barnes, master, was then there. On a day in said month he
observed a pendant flyeing at the Minerva's mastfe^ead, Where-
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66 mOH COURT OF ADMIRALTY.
1767 upon Lieutenant Fordyce^ of the TryaJ, went in the said ship's
R^^ boat, and, as he informed deponent, ordered Barnes to pull down
Babhes ^^^ pendant; which he refused. The said colors were illegal.
The Minerva and the Tryal lay a quarter of a mile from each
other.
Examined 12th June, 1766. — Bond was, in May, 1766, a fore-
mast-man on board the Tryaly stationed at Charles Town. The
Minervay John Barnes, master, was then there. On a day in said
month he observed a pendant flyeing at the Minerva's masthead,
and other King's colors, viz., a jack and ensign. Thereon,
Alexander Fordyce, lieutenant of the Tryal^ took said ship's boats,
and with eight men and a coxswain, one of whom was deponent,
went alongside said ship, and Fordyce desired Barnes to strike
the Pendant, which he refused, and dared Fordyce to come on
board, and threatened his life if he dared come ashore. Fordyce
then returned on board the Tryaly and took several more men
with arms, went alongside Minerva again, and desired Barnes
to strike his said colors, which he refused. The Tryal and
Minerva then lay within a quarter of a mile of one another.
Fordyce swears the Minerva and Tryal were four miles distant
from each other. Storey and Bond swear they were distant only
a quarter of a mile. Therefore no credit can be given to them.
K so, Fordyce is a single witness, and the orders and instructions
required two witnesses. There is no proof that John Barnes is a
British subject, or that the vessel was manned by British subjects.
Dr, Harris. — No objection is taken to the Prosecution, the
Order of Council being notorious and binding. But Dr, Wynne
says there is not sufficient proof. I allow there is no direct proof
that Barnes is a subject of His Majesty, or that the ship belongs
to the King's service. But Barnes has submitted to the jurisdic-
tion by not appearing under Protest; and besides, the Act of
Navigation makes the presumption in our favor, because by that
Act no ships but English ships can trade to the Colonies. If so
it is immaterial whether Barnes is a British subject or a foreigner,
his command rendering him amenable to the laws of Great
Brittain. The Question then is reduced to this ; Have we proved
our point ? Fordyce says the colors were taken down by Snell.
Storey says [he] went on board a boat to go, and came back.
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HIGH COURT OF ADMIRALTY. 67
Sneli and the other witnesses say, Fordyce was twice refosed to 1767
take down the colors. Under these circumstances can there ii^[
remain a doubt that the colors were flying ? But, it is said, the g^^^j^
witnesses differ as to distance. All the endeavours to take down
the colors were not made at once and the same time. The dis-
tance might be greater when Fordyce first went and when Snell
went. Besides, distances at sea are yery deceitfoll. The only
question is, whether you have any doubt on the whole that the
ship wore illegal colors, and not how far distant she was from the
TryaU. Are you satisfied the Minerva carried a Pendant con-
trary to the Instructions ? Should that be the case, I will men-
tion what you may do. The Court may fine, imprison, condemn
in damages and costs. It is true no sentence has been given in a
case of this sort these twenty or thirty years ; none having been
found so audacious as to stand out after Articles have been given.
I hope in the present case you will inflict such a fine as may be
a terror to others from committing the like offence. The Order
of Council, I apprehend, will not be disputed. By 5 Anne, the
Statute of Union, 1 Art., enacts that the two Kingdoms, on or
before . . . 1707 shall be united, and that the ensigns armorial
(worn by each) shall be as Her Majesty shall appoint. Imme-
diately after the Queen published a Proclamation concerning the
wearing colours, and directing what colours shall be worn. The
Proclamation recites the Statute of Union as the foundation of it,
and mentions a distinction to be made between the King's ships
and merchantmen, as to wearing colours according to ancient
usage.
Dr. Wynne. — This is admitted to be a criminal prosecution,
and yet the Doctor, with all the information arising from his
office, added to his own experience, has not been able to produce
a single instance where sentence has been given in a cause of the
like nature. I should be glad to know what the Prayer is, and
what is the punishment intended. It is my duty to avail myself
of every objection possible. Nor will it, I hope, be thought dis-
respectfoll in me to say, it is the duty of the Court to allow the
defendant all the advantage he can have. I am told of a book
called Sea Laws. Whence does that book derive its authority ?
If the gentleman means to avail himself of a Proclamation pur-
F 2
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68 HIGH COUKT OF ADMIRALTY.
1767 suant to an Order of Coimcil, he ought to go to the Council
B^^^ Books, and procure an Authentication thereof from the Clerks of
„ ^' the Kecords in the Council Office. It is not an Act which every
Babnbs. ^ ^ •'
man is bound to take notice of, like a public Act of Parliament.
An Order of the King in Council is not of equal force with a
Private Act of Parliament, and that can't be taken notice of
unless it is pleaded. It is not for me now to enter into the ques-
tion whether a Proclamation issued pursuant to an Order of
Council would ex vi sua authorize any Court to decree. This
does not say the Crown shall have a power in the Court of Ad-
miralty to fine and imprison for a breach of it : and this is a
criminal prosecution ; therefore nothing can be presumed. There
is, however, a radical defect in the Articles. They have pleaded,
but not proved, Barnes to be a British subject. It won't be said
a foreign subject is bound by our Eegulations. A man either
comes voluntarily and prays the aid of the Court, or else by
citation, and appears without a Protest. But can it be said a
person who is arrested, and must appear or go to gaol, is under
the same predicament ? He is certainly no volunteer. Besides,
the vessel may be foreign, and drove into Charles Town by stress
of weather. The name Barnes don't point out the master to be
an Englishman. But if it did, it would not be decisive, for 'tis
notorious that English names were used by claimants from Eus-
tatia, &c., in the late war ; so that the name being English prima
facie don't prove the defendant an Englishman. They have
failed to prove the defendant an English subject ; ergo^ the Court
must say, Barnes not appearing to me a British subject, I am not
warranted to pronounce. The evidence is very extraordinary and
contradictory. Fordyce is flatly contradicted by Storey. For-
dyce, we are told, was threatened to be murdered ; but he knows
nothing of such threats. Amongst these contradictory accounts
I can't tell who speaks truth. It is a non liquet
Dr. Harris. — The Doctor says we are mistaken in our cause and
our facts. The Order of Council has been published ; it is the
law of the land. The King is the fountain of honor. If a person
takes upon him what does not belong to him, as suppose a blue or
red ribbond, even the livery of a noble family might be prose-
cuted in a Court of Honor. These merchant ships are guilty of
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HIGH COURT OF ADMIRALTY. 69
a very great afixont by assuming the King's ensigns armorial. 1767
Sappose one of them is detected ; the Order of Council says he \ b^
shall be brought before the Court of Admiralty. That must be for ^^^^8
punishment. The 5th Art. has not been examined to. I was
not aware of it. I might have the conclusion rescinded, and the
witnesses examined over again to this Article. Depositions have
been altered. See the C€ise of Orielles v. Oansell in Chancery
(2 Peer Williams, 646). Dubordien swore the examiner had
taken his deposition falsely ; that he did not intend to depose as
the examiner had taken it down, but according to an amendment
then offered. It is the constant practice of the Spiritual Court to
examine to points of identity, after the publication, where they
are omitted. Smith v. Smithson (1), 1757, before Sir George Lee,
and also Boxley v. Stvhhington (2), 1758. Also Lady Amelia
BiUler*8 casey before Sir Edward Simpson. At the end of the
cause Sir Edward was stopped for the party to examine to identity.
If you have doubts on the deficiency in this respect, you will order
the witnesses to be examined to the country of the man, and to
whom the ship belongs. He twice refused to take down the colours
and repulsed Snell. If he put up the colours, it is sufficient. The
refusal to take them down is an aggravation. The variation in
witnesses shows that they have not combined together. I hope
you will set some mark of disapprobation on the insult offered to
His Majesty's flag.
Sir Thomas Salisbury y Judge. — I have frequently granted war- Q. Did the
rants in cases of a similar nature to the present. I am surprised to^^e^ny^
there has not been more care taken to prove the Articles in a case JfJ^^^^lie hai
of a new impression. This abuse of the flaff may be attended not said
• 1 1 1 -r 1 "i-i -I 1. 1 /v. t -enough. If
with bad consequences. It may be called a sbght offence, but I he did not,
don't think it so. I would support the authority of the Council. ^^^ '
[The Minerva. 4th Sess. H. T. 1768. "Judge rejected Oostling's Petition,
and by final decree pronoun&ed that Oostling had failed in his Articles against
Barnes, and dismissed Bames from all further proceedings in the suit " (3).]
[(1) 2 Lee's Eccl. Cas. by Philli- [(3) Extracted from the Assigna-
more, 416, 606.] tion Book in the Admiralty Registry.]
[(2) Ibid. 601, 637.]
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70 HIGH COUBT OF ADMIRALTY.
i^^8 SCOESBY V. HUTCHINSON.
Ha. Term Ooodwin. * Bargrave.
^^ Dr. Wynne. Drs. CoUier and BwrreU.
wagefiduo'ufl ^- Wynne. — This is a cause of substraction of wages, brought
Pi^Dtiff or ^y Frances, widow and sole executrix of Francis Scorsby,
DefendAat? Mariner (whilst living, belonging to the ship Oenerdl Wolfj John
Kcott, master) against John Hutchinson, Esquire, owner of the
said ship. The question is, how much the balance of the wages
amounts to ? Frances Scorsby charges that Scorsby entered on
board the aforesaid ship 15th January, 1761, at £3 5s. Oi. per
month, and served to the 25th October, 1762, which, being twenty-
one months and ten days, amounts to £69 6s. 9A. ; out of which
she makes sundry deductions, and states the account to stand as
fc^llows : —
£ «. d.
21 months and 10 days at £3 5s. Oi. per month = 69 6 8
£ s. d.
IKiverpay . . 6 10
Hospitals ..110
Absence money .770
14 18
Balance . . 54 8 8
On the contrary, Mr. Hutchinson asserts that Scorsby was
hi red at no more than £3 Os. Ot2. a month, that he was paid all his
river pay up to 16th February, 1761, and that he served to 25th
0(^tober, 1762, which amounts to twenty months and nine days,
Lt,^ £60 18s. Oi. ; out of which he makes the following deductions,
aud states the balance to be £33 17s. Oi.
IS and 9 days at £3
Advance money
Hospitals .
Slops . . .
Do
Absence money
0«. Oi. per month =
£ ». d.
.300
1
7 8
8 6
7 7
£ t.
60 18
27 1
d.
Balance . .
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HIGH COUKT OF ADMIKALTY. 71
Dr. CoUyer. — I agree the case is as Dr. Wynne has stated it, 1768
and that the sum in dispute is £20 11«. Sd. The balance asserted soobsby
by Mr. Hutchinson to be due to Scorsby was tendered at the outset H^jTomraoir.
of this cause, and paid into the Begistry, with such costs as might
be due by law ; which not being accepted, Mr. Hutchinson gave
an allegation, pleading that Scorsby was hired at £3 Os. Od. a
month and no more, pleading his receipts for the above-mentioned
sums, and therefore claiming a deduction thereof out of the wages
sued for ; also stating that Mr. Hutchinson was only owner of one
moiety of the ship Oeneral TFoZ/* during the voyage, and so liable
to pay only one half of the wages, and so if Scorsby 's claim should
be right, Hutchinson can't be liable to costs, having tendered
more than his proportion of the wages claimed.
Upon Mrs. Scorsby's Summary Petition (given February 23rd,
1764), William Jarvis swears Scorsby was hired in January or
February, 1761, to serve as a mariner on board the Oeneral Wolfy
in which ship he proceeded from London to Portsmouth, and there
took troops on board ; then sailed to Belle Isle, then to Marti-
nico, then to the Havannah, where he arrived in June, 1762, and
remained till the October following, when the ship was drove
ashore in a gale of wind at the Punto Castle, and wrecked. He
hath been informed the freight was paid to Mr. Hutchinson. That
Scorsby during all the time he was abroad performed his duty,
and deserved the wages, which he hath been informed and believes
were £3 5«. per month.
Thomas Nicholson says he shipped himself in December, 1760,
as third mate on board the Oeneral Wolfy and about two months
after Scorsby shipped himself as a foremast man on board the
said ship at £3 5a. per month. That the ship sailed to Ports-
mouth about February 15th ; thence to Belle Isle, Martinico, and
Havannah, where she arrived in June, 1762, and remained till
October 25th following, when she was drove ashore in a violent
gale off the Punto and wrecked.
2nd March, 1765. On Bargrave's Allegation, John Clark says
he was hired in January or February, 1762, as second mate of the
Oeneral Wolf; that soon after Scorsby was shipped as a foremast
man on board the said ship. Deponent saw Scorsby sign the
articles and agree for the wages of £3 per month, and no more.
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72 HIGH COURT OF ADMIRALTY.
1768 Before the said ship sailed from Grayesend Scorsby and the rest
BooEOTv of the mariners were paid all their river pay up to the 17th of
HimMiNeoK. ^©truary, and then also received one month's pay advance money.
The General Wolf was to tally (ate) 25th of October, 1762. De-
ponent saith Francis Scorsby took up of John Scott, the master, in
slops and liquors £15 148,, great part of which deponent delivered
out to Scorsby himself on account of Thomas Vickerman, a part
owner and husband of the said ship, for which the owners of the
said ship are liable to the said Vickerman. Deponent knows
John Hutchinson is not the sole owner.
John Dennis was in January, 1761, clerk to Mr. Hutchinson ;
chiefly employed by him in his shipping business ; generally
kept his waste book, and thereby became acquainted with Hutch-
inson, John Scott, the master, Scorsby, the mariner, and Thomas
Vickerman. February 16th, 1761, deponent was present on board
the General Wolf at Grayesend and saw Francis Scorsby, the
deceased, execute an article to serve as a foremast man on board
the said ship during her intended voyage till she should arrive
again at the port of Deptford at the rate of £3 by the month, and
not more. Verily believes that he at the same time paid Francis
Scorsby and the rest of the mariners all their river pay up to that
day. Deponent paid Scorsby at the same time (he paid him his
river pay) one month's pay in advance, being £3. Believes
Scorsby on board said ship took up deaths and other necessaries
of Thomas Vickerman, or his agent, to the value of £7 8& or
thereabouts, for which Hutchinson gave Vickerman credit. De-
ponent hath seen since the General Wolf\fa& wrecked ... in (1)
the hands of William Jarvis the chief mate (entrusted by the
Captain to deliver cash and other necessaries to the mariners), or
in an account delivered and left by him in Hutchinson's office a
charge for £8 6a., or thereabouts, for Sundays (sic) delivered to
Scorsby during said voyage ; therefore believes they were had by
him. That Frances Scorsby in her husband's absence, by his
order, received from Hutchinson, deponent, or other of his clerks,
several sums monthly amounting to £7 7s. ; saith that £33 17«.
with £3 advance money, £7 8s. slops received on account o\
Vickerman, £8 6s. received from the Captain, £7 7s. paid to hif
[(1) Some words appear to be omitted here.]
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HIGH COURT OF ADMIRALTY. 73
wife, and 20«. paid to Greenwich and the Merchants' Hospital, 1768
making together £60 1&., he believes is the whole due to Scorsby soobsbt
for his service. That from February 16, 1761, to October 25, hutohinbon
1762, Hutchinson was not sole owner of the General Wolf ; that
Thomas Yickerman all that time was owner of three-eights, and
Benjamin Cunningham of one-eighth thereof.
15th July, 1767. An Allegation was admitted exceptive to the
credit of Nicholson, upon which one witness was examined.
• Mr. Balph Freselique says he has known Thomas Nicholson
upwards of four years, by his being a witness in a cause in the
Common Pleas, in which deponent was concerned as an attorney
for the defendant. From the evidence Nicholson gave therein,
and from the rest of the evidence and nature and circumstances
of the cause, is convinced he did not speak the truth. Deponent
hath heard him declare he would go no more to sea, that he could
get better employment in Westminster Hall, meaning, as deponent
believes, by being paid for his evidence. He hath frequently
declared he would give evidence on any side for a guinea.
Objection was taken by Dr. Wyime to the evidence of John
Dennis because he was bound for Mr. Hutchinson in this sute.
Brs. CoUyer and BurreU (1) answered that was not such an inte-
rest as would render Dennis an incompetent witness. The Judge
took time to deliberate thereon to the next Court, when Mr.
Hutchinson's Council (for whom Bargrave appeared after her
husband's death) offered to satisfy the Court that John Dennis
was declared a bankrupt in the Gazette of Tuesday, January the
20th, 1 767, and was not examined till the 20th of May following^
when he could have no interest, but was by such Statute of Bank-
ruptcy free from all engagements entered into prior to the date
of the commission. The Judge would not allow the Gazette to be
read, nor the deposition of John Dennis.
Dr. Wynne. — Both our witnesses speak positively to Francis
Scorsby having been hired at £3 58. per month. On the contrary,
there is not legal evidence to contradict that assertion, and shew
it was only £3 per month, for one witness is considered in law as
none ; consequently cannot repell our evidence ; and, the evidence
of Dennis being rejected, there remains only Clark, who is insuffi-
[(1) ThiB is the first appearance in the Reports of the author's name.}
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T4 HIGH COUBT OF ADMIRALTY.
1768 cient to contradict the account we have giveiL The exception taken
g^HflBY hy Mr. Frezeliqae to Nicholson's testimony is unwarrantable.
He has no right to make an implication* He must speak to his
own knowledge and not to his opinion, which can have no weight
with the Court As to the charge of slops, if there was a constat
thereof you could not enter into the question ; you have not juris-
diction to agree to a set off. It is like a legacy in the Arches
1 iTDUght by a minor, where a set off was endeavoured to be made
by the executor for money advanced for the maintenance of the
minor, but the Court said they would not enter into that question.
Drs. Collier and Bvrrell. — The Court having said we are not
entitled to read the deposition of Dennis, on account of his being
an interested witness, and having refused to hear the Gazette
read, which would have demonstrated him not to be so, it is neces-
sary for us to consider the situation of the opponent, who have
produced two witnesses to make out the charges, the first of whom,
viz. Jarvis, says nothing relative to the sum for which Scorsby
was hired, of his own knowledge, but only by information, which
in a case of this nature cannot be depended on, as there is no
constat upon what grounds his opinion was formed, and whether
the information was such as could be relied on. As to the account
given by Nicholson, to be sure, if his character stood unimpeached,
it would have weight, as his assertion is very positive. But, on
the contrary, if the exceptions taken by Mr. Frezelique are just,
and there is no reason to believe Mr. Frezelique would speak
falsely, Nicholson's evidence must be disregarded. Dr. Wynne
was alarmed at Mr. Frezelique speaking by implication. What
can be a stronger inducement to found Mr. Frezelique's bad
opinion of Nicholson than hearing him say he would swear on any
side for a guinea ? With respect then to the evidence given, it
stands thus : for the plaintiff one witness speaking from hearsay,
and another witness positively, whose character is so highly im-
peached as to render his deposition highly suspicious, if not
altogether incredible. For the defendant one witness, who speaks
positively upon his own knowledge and observation, against whose
character there don't appear the most distant hint of a refl^ion.
Under these circumstances we must insist that the cbarge is not
proved. But if it was, still we must insist that our client is liable
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. HIGH COUKT OF ADMIRALTY. 75
to pay no more than his proportion to his share in the ship. In 1768
the case of the Phoenix (1) the Lords determined that a part owner Soobsbt.
is only liable to pay in proportion to his share. We are told that HtmraNaoN.
we are not entitled to have the items charged for slops deducted.
Indeed, no reason has been assigned for that position, thongh a
determination in the Court of Arches was mentioned ; but it is
totally foreign to the present case, and the smaUest attention wiU
point out the absurdity of rejecting a charge of this sort. For if
such a doctrine was adopted, the consequence would be that all
the seamen employed in long voyages would go naked, as no man
would trust them without this species of security. The great
importance of this aUowance was so well known that it has been
provided for by the law. If the mariner takes up money or Sea Lawa. fol.
deaths, and the same is entered in the Purser's book, but [by] the b. 2,* ch.*3,^^'
custom of the Marine it is a discompt of so much of the wages as ^ ^^'
the same amounts to ; and in an action brought by them for their
wages the same shall be allowed, and is not accounted mutual,
the one to bring his action for the deaths, and the other for his
wages. Upon the whole we hope you will be of opinion that
the Plaintiff has failed in making out her case, and dismiss our
client with costs.
Sir Thomas SaliAurtfy Judge, decreed £60 18a. to be the wages
due to the deceased at £3 per month ; and that the deductions of
£27 Is. being made, the balance due to the Plaintiff was £33 lis.
[It appears from the Delegates' Assignation Book that the appeal in this case
was heard on the 27th of June, 1771, by the Judges Delegates, Adams, B., and
Doctors Macham, Calvert, and Simpson. The Court rejected the deposition
of John Dennis, he being one of the Bail in the Court below ; afiirmed the
decree of the judge of the Court below ; and decreed the cause to be remitted.]
[(1) The Xorih Lyon v. The Phcehix, infra, p. 296.]
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76 HIGH COURT OP ADMIRALTY.
1768 HOLLAND V. THE MONEY ARISING FROM THE SALE
EO. Term. OF THE « ROYAL CHARLOTTE " (1).
Oostlmg. Fuller.
Dr. Wynne. Dr. BurreU.
Q. Is a master 25th January^ 1767| an action was entered on behalf of
?n ^l^Oomt^ Thomas Cross, late chief mate of the Bayai Charlotte, in a cause
formonev ^f gubstraction of wages. The ship was arrested, and no bail
adyanoed by .
him to pay^ being given on behalf of the owner, who was under misfortunes,
wages? proceedings were had in paenam, and the ship sold by decree of
the Court The net produce of the sale, being £368 14«. 4(2., was
brought into Court ; out of which were paid the wages claimed
by Cross, being £69, and his Proctor's bill £10, which reduced
the sum brought into Court to £289 14«. 4<2., which now remeiins
in the Begistry.
8th July, an action was entered in £600 on behalf of Benjamin
Holland, master, against the monies remaining in the Begistry
in a cause of substraction of wages by him advanced and paid to
the mariners of the said ship. The monies were attached by
executing a warrant on the Begistrar, but no notice was given
to the owners. The warrant was returned, and no appearance
being given, a first, second, and third default was granted.
3 Sess. M. T. Jenner exhibited for Thomas Dover Hopkins,
and alledged him to be sole owner of the Boyal Charlotte under
Protestation. The Judge assigned him to extend his Protest by
the Bye Day. On extending his Protest, Jenner withdrew his
appearance for Hopkins, and exhibited under protestation for
Marmaduke Johnston, and alledged him to be a creditor by
assignment or bill of sale of the Boyal Charlotte.
In the Act sped between Jenner and Gostling, Jenner alledges
Hopkins to be indebted to Johnston £126 88. 7i., and that he by
deed assigned the said ship to Johnston for security of such debt
and interest, which he agreed to pay in twenty days after her
arrival at London, or thereby sold Johnson the said ship. He
[(1) For other proceedings in this see also Holland v. Proceeds of " Boyd
case, see Day v. Wolfe, infra, p. 88 ; Charlotte,' supra, p. 62.]
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HIGH OOUKT OF ADMIRALTY. 77
exhibits an instrmnent to that effect. Says Hopkins failed in 1768
payment; that such instrument is an absolute bill of sale to Holland
Johnston, who therefore had an interest in the ship, consequently thbPboobkds
in the monies arising from the sale thereof, so far as relate to ^^™^^J^
the said debt and interest. That Holland's demand is matter of
account, and not cognizable in this Court, and prays Holland's
action to be subducted. Oodling denies the instrument is an
absolute bill of sale, and, if it was, that the ship was in the first
place liable for wages. That Holland's demand, as appears by
his affidayit, was for wages, and therefore prays a fourth default.
2 Sess. H. T. The Judge on deliberation assigned Jenner to
appear absolutely, which he did for Johnson, and alledged he
had the sole right to the remainder of the monies ariseing from
the sale.
Fuller exhibited for Thomas Dover Hopkins ; alledged him to
be owner of the ship at the time of the sale, and prayed the said
monies to be paid to him or his attorney.
As it is the usual practice of the Court of Admiralty for the
party who prays the money to bring in the bill of sale of the ship
annexed to his affidavit, we have offered the affidavits of Messrs.
Hopkins, Joplin, and Langstaff to account for our not having
complied with the mode of practice.
Mr. Hopkins swears he is informed that about the 23rd of
January, 1767, an action was entered by Thomas Cross, chief
mate of the Boyal Charlotte, Benjamin Holland, master, against
the ship in a cause of substraction of wages. That the latter end
of 1762, or beginning of 1763, he purchased the said ship of
Messrs. Jopling and Fowler, who conveyed it to him by bill of sale.
That he continued sole owner till the ship was sold by decree of
this Court. He never authorised any person to appear for him in
the cause brought by Holland about the monies proceeding from
the sale of the said ship, until he gave a proxy to Mr. Fuller the
19th of January last. But finding a contention between Holland
and Johnston concerning the aforesaid monies, he intended to
appear personally in this Court the 9th of December last, to pray
the money to be paid to him as the owner, but was arrested the
5th of December at the sute of Holland, and kept in custody
and prevented from coming. He swears the bill of sale made to
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78 HIGH COUET OP ADMIRALTY.
1768 him by Fowler and Jopling was left by Joseph Catterina, a
Holland " friend of deponent, with George Clifford, merchant, in Lime
ThePmkjebdb Street, London. That he has since often applied to CJlifford for
OP THE Royal it, who says he has lost or mislaid it, and after diligent search
made cannot find it.
Bobert Jopling confirms Hopkins' deposition as to the purchase
of the ship of him and Fowler in 1762.
John Langstaff swears that on the 11th of Noyember last he,
by direction of Mr. Hopkins, went to Mr. Clifford and demanded
a bill of sale of the DvJce of York (since called the Boyal Charlotte)
made from Jopling and Fowler to Hopkins the latter end of 1762
or beginning of 1763 ; that Clifford told deponent he remem-
bered haying such bill of sale in his custody, and had seen it
some few months before, and that he would search for it amongst
his papers, and desired him to call again in a day or two, which
he did, and Clifford then informed him he had made diligent
search for but could not find it, and did not know what was
become of it. Deponent, by Mr. Hopkins' desire, lately requested
Clifford to make an affidayit to that effect at Doctors' Commons,
but he refused.
Dr. Wynne agreed in general that the case was as stated by
Dr. Bwnrell ; who haying read the affidayits. Dr. Wynne obseryed
that there was the strongest marks to ground a suspicion of collu-
sion between Hopkins and Johnson, in order to preyent Holland
recoyering what was justly due to him. Holland entered the
action fairly for wages paid by him to the sailor, not yoluntarily,
but to preyent being imprisoned at the sute of the sailor aboye
mentioned. I readily agree the master cannot sue here for wages
due to him, but the mariners may. The master cannot because
he engages on the credit of the owner, but the wages in question
were not paid by the master on that foundation. It is said our
mode of proceeding is wrong. Now I apprehend any person may
proceed against money in the Registry. I beg leaye to insist,
as a legal appearance has been once giVen for Mr. Hopkins
by Mr. Jenner (who afterwards declared he would proceed no
farther), he is not entitled to a second appearance.
Dr. Burrell. — The first Question in this case is. Can the Court
of Admiralty legally take cogniztace of the application ? It is
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HIGH COUBT OF ADMIRALTY. 79
made by a person who, according to his own shewing, was master 1768
of the ship in question. It is made for wages not due on his own Holland"
senrice, but money advanced by him for wages due to the mariners rp^p*^*
of the said ship. I will not contradict Dr. Wynne* s position, that of the Rotal
money may be attached in the hands of the Begistrar ; and the £j^„ p 234
books say it is a custom in the Court of Admiralty that goods
may be attached in the hands of a third person in eausd mariUma
et eiviUy and on four defaults made, the goods may be delivered to
the Plaintiff, he giving caution to redeliver them, if the cause of
action be disproved in a year and a day, after the four defaults.
But then this must be in a cause clearly within the jurisdiction
of this Court. I do not comprehend the justice of attaching
money (ariseing by the sale of the ship) in the hands of the
Begistrar, and proceeding to judgment by defaults, without
taking out a fresh citation against the owner in a new cause.
It may possibly be justified by practice, but cannot by the rules
of Equity. In the present case Mr. Holland is not entitled to
sue in the Court of Admiralty, being master of the ship, and as
such contracting upon the credit of the owner, and not, as the
mariners do, upon the credit of the ship. Clay v. ^S^wiyraw, Moiloy, b. 2,
Salt 33, C. J. Holt said in a sute for wages in the Court of ^ ^' § ®-
Admiralty, it was never allowed the master, though it is the
sailors. Forteacue Bep. 230, Anon, a Prohibition was moved on
a sute in the Admiralty by a master of a ship against the part
owner for seamen's wages, he having paid off the seamen, and
would now stand in their places. And per Owriam it was granted,
ferwhen the master has paid the seamen and they are discharged,
there is an end of that priviledge and indulgence to seamen,
which is personal and can't be transferred : Bead v. Chapman, strange, 937.
If the mate becomes master, he can sue in the Admiralty
Court for wages, as mate only. This is a doctrine highly
reasonable where a person relyes on the credit of the owners.
That the master does, is evident from the mode of electing
him by the part owners in proportion to their concerns, and not
by the majority. Another objection to this mode of proceed-
ing is that the charge is matter of account between the master
and owner. The master may have received money, and the
balance possibly turn out upon examination against him. This
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80 HIGH COURT OF ADMIRALTY.
1768 enquiry is not cognizable here, but in Chancery. There is no
~ HoLuufD instance of this Court having received such an application, and I
TbePboceeda ^^^*^* y^^ ^^^ ^^* ^^^ assume a jurisdiction which don't clearly
OP TBE Royal belong to you, and which the Court of Appeal or the Temporal
Court will set aside. But if Mr. Holland was at liberty to sue
here, the mode must be deemed improper. After a Protest has
been oyerruled, and an absolute appearance given, it would be
very absurd to grant a default. What is the end of proceeding
fu psenam f To enforce an] appearance, which given at any time
before sentence salves all defects. We were prevented appearing
on the 9th of December last by Holland's arrest. We take the
earliest opportunity of appearing now, and therefore hope you
will not think of decreeing the fourth default. If my position is
right, that a master cannot sue in the Court of Admiralty for
wages, I hope you will decree my client all the costs he has
been unavoidably put to by this unreasonable and improper
application.
Sir Thomas Salisbtiry, Judge, decreed the Begistrar to pay
the money remaining in his hands to Mr. Hopkins ; but gave no
costs.
i'«^« THE KING V. JOSEPH LANE.
Srd^. CONTEMPT— INSULTING THE MARSHAL.
GostUng. Alexander.
Dr. Harris. Dr. Wynne.
Qp Was the ^
Hnt^fit broke? t^ -n- . mi • • i t t t -rr* • •» - •% i*%
Q. sboold nnt Dr. Hams. — This is a sute brought by the King m his OiSice
be^pimiBhea^* of Admiralty against Joseph Lane, pilot of the New Elizabeth, for
28th September, 1763, Charles Bowden, Marshal of this Court,
arrested the ship New Elizaheth in a cause of substraction of
wages at Botherithe. After that he told the mate of the ship
and the pilot, the master not being on board, that the ship must
not be moved till bail was given. But on the representation of
the pilot, that the ship was inconveniently situated, he gave leave
U} remove her to a more convenient pltwe. This was Saturday,
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HIGH COURT OF ADMIRALTY. 81
on the afternoon of which Bowden went to Gravesend ; and on 1768
his letnm the next day (Sunday the 29th) he met the New Eliza- bbx
Idh at Barking Shelves in full sail towards Gravesende. Bowden iJ^
was in a boat rowed by two men, with whom he went on board
the Elizaheth and asked the pilot, Lane, how he dared to move
her, she being under an arrest. He answered he had orders for
80 doing, and would carry her to Gravesend in spite of him, and
without the consent of Bowden or those who employed him,
though Bowden had shewn his mace and warrant, the insignia of
his office ; in regard to which Lane observed he did not regard
his piece of paper or mace, which was only a piece of lead. Bow-
den replied he would complain to the Trinity Masters and the
Lords of the Admiralty. Lane replied he valued thepi no more'
than he did him. Bowden afterwards presented a Petition to the.
Lords of the Admiralty, with an affidavit of the £Etcts annexed.
The Lords ordered Lane to be prosecuted. Lane was accordingly I
arrested, and after laying a week in the Marshalsea Prison, bailed.
Articles were given in and admitted, you thinking them all
relevant. A negative issue being given, we examined three
witnesses, viz., Bowden himself, West, and Jordan, who rowed
him. Jordan says, on the 24th of September Bowden pulled out
the silver mace and piece of parchment, and asked Lane how he
durst move the ship. Lane, in reply, damned Bowden and his
mace, i^., the officer and his staff of office. West says Lane went
so fieur as to challenge Bowden to fight him [with] sword and
pistoL Bowden, in his affidavit and interrogatory, says Lane
said he would carry the ship where he pleased, in spite of the
piece of paper and piece of pewter, and that he regarded the
Trinity Masters and Lords^of the Admiralty no more than him.
An allegation has been offered by Lane containing defensive
matter, which was not opposed, because I would not, in a criminal
charge, preclude a man from making his defence. Another
reason for not opposing it was that it shewd Bowden behaved very
civilly. It states that Bowden did not shew his mace, and that
without provocation he threatened to complain and have Lane
broke ; who answered he had done nothing and was not afraid.
On this plea four witnesses are examined, Francis Young, Stephen
Smith, Peter Robb, and Patric Eampwell; two of whom deny
G
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82 man court of admiealty.
1768 their seeing the warrant or mace. The two other witnesses say
^£^ Lane damned Bowden. Eampwell, to the 4th Interrogatory,
j^^^ says Bowden shewd Lane his warrant and mace, who said he
knew who he was, and bid him kiss his posteriors. If yon think
on reading the depositions that they come up to the charge, I
hope for example sake you will punish him as severely as you
can ; otherwise it will be impossible to have your warrants executed
and property secured.
Dr. Wytme. — I am council for Joseph Lane, who stands charged
with breaking the arrest of this Court and treating your officer
with contempt. I did not know it began by Petition of Com-
plaint from Bowden, on whose affidavit the Articles are framed.
Our four witnesses say, when the ship was arrested, Eampwell
and Lane sent Stephen Smith to acquaint his brother John Smith,
the master. He returned and told them he had seen the master,
who had been at Doctors' Commons and settled the afiGedr, and
desired the ship might sail as fetst as possible to Gravesende.
They did so without stopping at Deptford for fear of being
delayed. Smith says, when Bowden met them, he called Lane
the pilot rascal, scoundrel, and several other abusive names, and
put himself into a great passion. When he came on board they
told him Smith's message, upon which he was satisfied, and
ordered one of the watermen to rub out the arrest mark (which is
an anchor) and said they might proceed on their voyage. That
the Marshal afterwards returned, and put an assistant on board.
Eampwell, the second mate, swears te Bowden's ill-usage of Lane,
by calling him old rascal and scoundrel before he came on
board, and asking how they durst move ; Lane replyed the ship
was discharged. Bowden ordered the anchor to be let go. Lane
asked if he knew what he was about ; that if the anchor was let
go, the ship would never come up again, which was worth £30,000.
Bowden said he was unacquainted with the river. Lane asked, if
Bowden took charge of the ship ? He answered. Yes. Lane said.
You are a clever fellow to take charge of a ship who knows nothing
of the matter ; on which words arose ; Bowden called Lane old
rogue and rascal; and Lane called Bowden young rogue and
rascal. He did not hear any abuse offered te the warrant or badge
of office. In answer to the fourth Interrogatory, heard Lane say,
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HtQft OOUBT OF ADMIKALTY. 83
Bowden might kiss his a . ; . bat not that his masters or the 176S
Lords of the Admiralty might. j^
Br. Harris. — They used the indulgence given by the Marshal j^^
very ill by not stopping at Deptford^ as ordered. Bowden was
justified in using ill language when they behaved so ilL In
abusing Bowden he abused the Court ; the mace represents the q. The sUver
Judge. The excuse for disobedience of orders is, that the affair ^^®<^^i^e
has been settled at Doctors' Commons, which was not true. Lane i>octor mean?
ought not to have obeyed the Captain, being under superior
orders, those of this Court and its ofiScer. Eampwell says he told
Bowden of this in the gangway. In this he is contradicted by
other witnesses. Bowden, when he ordered him to stop, did not
mean he should drop the anchor in that very place, but as soon
as he got to safe ground. There is room to think the persons on
board mistrusted the authenticity or veracity of the Captain's
orders, else they would have gone away. If there was a compro-
mise at Doctors' Commons, that would not excuse their abusing
the officer of this Court It is said the Marshal was in a passion.
Had he not reason, when they were carrying away the ship?
How the abuse began is the point Now their own witnesses
prove Lane the aggressor.
Br. Wynne, — Though I do not say Bowden is an incompetent
witness, yet he is such a witness as the Court should attend tO'
with caution, because \kdiatestis in re sud. If he is not interested
in point of profit, he is in point of revenge, and it is proved he
said he would ruin the man by having him struck off the list of I
pilots. I do allow the charge is heavy, for breaking an arrest, I
for contempt of this Court and its officer. As to the arrest. Lane
has two just defences : (1) he was not answerable for any breach,
when he obeyed the order of his commander ; (2) if the arrest
was broke, it was under a reasonable permission, that he was
justified, viz., Bowden's approbation. Kampwell sent to tho
master, who said he was just come from Doctors' Commons, and
that the affidr was made up. There is good reason to think this
not altogether untrue, because within twenty-four hours after
their arrival at Gravesend the ship was discharged, and allowed
to proceed on her voyage. It is hinted the warrant was not
superseded for a month. How that happened, I know not. Lane
G 2
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84 HIGH OOUBT OF ADMIKALTY.
1768 had nothing more to do with ike ship than as a Thames pilot.
B^^ The reason of their going lower than Deptford was the persuasion
j^^^ the a£fair was settled. Dr. Ea/tris hinted the officer had acted
incautiously in taking off the mark. Let him look to that. They
paid the utmost deference to the Marshal and the Court by
remaining several hours at anchor in the same place after he left
the ship. Dr. Harris drew a very uncandid inference firom this,
ylz.y that the sailors did not believe the master. This is mere
suggestion. It is most likely the affair was agreed, and the war-
rant consequently superseded. The bail was not given. Will
you not compare the evidence of the Marshal with that on the
other side? Eampwell's is the fedrest. They did not resist.
They represented that if they had not moved the ship would
have been lost. I will not say it is trifling to insult the meanest
officer of justice. But then it is no small offence in the officer to
carry the ordet of ihe Court into execution in a scurrilous
manner. If Bowden used the words rogue and rascal, and thereby
drew on himself a return of the same language, he can't come
here for redress ; and is weU off if he don't meet with reprehen-
sion. The witnesses say he used those expressions, which are
more culpable in an officer of the Court than when they &11 firom
a common sailor. Dr. Harris styles it sea language. If so, my
client has as good a title to use it as Bowden. Neither of our
witnesses nor the waterman remember Lane saying he valued the
mace no more than a piece of pewter. I hope you will think
there is no room for laying a censure on my client. But if you
should be of opinion he has uttered unguarded words, that the
expenses he has incurred, and his laying in the Marshalsea from
the 15th to the 22nd of October without bail, will, I trust, be
considered a sufficient punishment.
Dr. Harris. — The causes in this Court have no promoter, but
are proceeded in by order of the Judge. I mention the Articles
and the directions of the Admiralty Board, not as binding upon
the Court, but to shew their sense of the insult, and that it is not
beneath their notice. Eampwell's evidence is suspicious and
contradicted. Bowden, on an interrogatory, says after Lane had
abused him, he told him the ship was bailed ; upon which he
permitted her to proceed. The question is. Did they break the
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HIGH COURT OF ADMERALTT. 85
airest? Certainly they did; for they removed the ship on a 1768
verbal message from the Captain. If they had not mistmsted the iai^
Captain they would not have stayed a whole day between Dept- i^j^
ford and Gravesend, contrary to his orders. I would wish [not]
to insist upon severity ; but I must say no one will arrest a ship [
if he is liable to suffer such insults with impunity. '
Sir ThcnMS Scduimry, Judge. — The warrant appears to have
been ^regularly served. On the pilot's complaint that the ship
lay in a bad place, the Marshal allowed him to remove her to a
safe place at Deptford. Did they deny his authority at first ?
They did not ; and yet, with the arrest mark upon the ship, went
beyond the station prescribed. They endeavour to avoid the
effect of the arrest by a series of falsities^ i.e., Captain Smith's
assertion that the ship was bailed ; and induced the Marshal to
rub out the mark. Afterwards, finding out the falsity, he returned
on board at eleven at night, and left a person on board the ship.
When Bowden ordered him to drop anchor, he meant only at a Defendant
proper place, and to prevent her going away. I think the pilot ^Jdoon^' ^
highly blameable for insulting the Marshal, and shall punish him denied in £5
li i*-,^ A-i 1 1 i..rti- . nomine expen-
by a fine of los. 4a., and condemn him m £5, normne expensarum. aarum.
Deputy Begistrar, Mr. Bishop. — The only instance the Registrar
knew of was the case of Mr. Chitty, merchant, who having [one] of
his captains arrested in his house by an officer of the Court of
Admiralty, rescued the prisoner and turned the officer out of the
house ; for which he was fined 13a. 4c2., and condemned in £36
costs.
[A warrant to attach Lane for non-payment of the fine and costs was subse-
quently decreed. See Admiralty Assignation Book, yoL 68.]
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86 HIGH COUET OF ADMIRALTY.
um
DELEGATES.
SCOESBY V. HUTCHINSON.
WAGES.
1768 f IT' Goodwin. Bargrave.
Br. Wynne. Brs. Collier and Btirrdl.
Ap^n^Dt^*' This is an appeal in a canse of substraction of wages bionght
gira security ^y Frances, widow of Francis Scorsby, deceased (whilst liying a
theAppi^i mariner belonging to the General Wolf, John Scott, Master)
costs? ^^^ against John Hutchinson, the asserted sole owner of the said ship.
Mr. Hutchinson died before the cause was heard, and it was re-
vived against Mary Hutchinson, widow, and Maria Teresa Hutchin-
son, spinster, the eldest daughter, the executors of the deceased.
The question between the parties was not, whether any wages were
due, but how much the balance amounted to. On the Summary
Petition the plaintiff charged £69 68. 8d!., and after sundry deduo-
tions reduced the balance to £54 88. 8d. The defendants allowed
the charge of £60 188., but, after yarious deductions made, ^the
balance £83 178., which they tendered and paid into the Registry,
with such costs as might be due, at the outset of the cause.
Heyeral witnesses were examined, and the cause heard 2 S. H. T.
1768, when the Judge pronounced the tender sufficient for the
balance of the wages due, and dismissed the defendants. Mrs.
Scorsby appealed to the Delegates, and the present petition is
that she may be compelled to give security to prosecute her appeal
find to pay costs, if she (ail therein.
For the Appellant, Br. Wynne insisted that the bail giyen in
the Court below was sufficient, and that no fresh bail ought to be
required in the Court of Appeal. He stated the security as
follows : — " Smart produced Adams, ballastman, security for
Scorsby, who bound himself in £30 to prosecute the action, and
to bring forth Scorsby into judgment, and to pay expenses in
case Frances Scorsby shall fail, and unless he do so that execn-
iion shall issue against his heirs, &c., to the sum aforesaid." He
[(1) This seems a mistake for 3 Sess. Trin. Term, 1768. See Del. Ass.
liook.]
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mOH COUET OP ADMIBALTY. 87
observed the Court of Delegates could enforce bail no other way 1768
but by excommunication. Bootoit
For the Appellate, Btb. CoUyer and Burrell replyd that the se- Hu,rc^.g^jj
curity given in the Inferior Court was only calculated to ensure
the prosecution, and to secure the payment of costs in that Court ;
that let this Court have ever so extensive a power to enforce the
performance of the contract, yet it was by no means adequate to
the costs which must be necessarily expended in this Court, and
that therefore the parties ought to give fresh securities ; and in
support of their assertion produced the subsequent authorities.
Clarke, Praxis Cur. Adm. De dandis fidejussoribus, T. 59. Si
Actor in prima Instantia appellavit non est admittendus ad libel-
landum nisi editis fidejussoribus, de lite prosequenda, de ex-
pensis solvendis, judicio sisti, et ratihabitione Procuratorii. Si
Bens in prima Institia appellaverit, tenetur fidejubere, ad omnes ^ote thereoo.
effectus prsBdictos, ad quos reus in prima Instantia fidejussit.
Fidjussores enim in causa principali non tenentur in caus& appel-
lationis . . .
Eidley's View of the Civil Law, Pt 2, c. 1, s. 2 : In matters of
contract, the proceeding is by libel concluding to the action ; the
party agent giving caution to prosecute the sute, and to pay what
shall be judged against him, if he fail in the sute ; the Defendant,
on the other hand, securing his adversary by sufficient surety,
that he will appear in judgment, and will pay that which shall be
judged against him, and that he will ratify all his Proctor shall
do in his name.
Scaccius de Appellationlbus, Qu. 17, Limit. 2, nu. 77 ; Conset,
Pt 5, c. 1, s. 1 : Appellatio mutat omnes cautiones et novas
eautiones judiciales requirit, quia cautio de Judicio sisti finitur
in prima Instantia . . .
Appeals must have certain formalities to be observed : 1. That
it be done gradually, i.e., to the next immediate Judge ; 2. Viva
voce^ or in writing ; 3. That there be an oath that it is not frivo-
lously appealed, and that a Bond or Caution be given to prosecute
the appeal and pay the thing adjudged. Parties aggrieved must
appeal from the Court of Admiralty to the King in Council
within fifteen days, and the Appellants must give good security
that they will effectually prosecute such appeal and answer the
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88
HIGH COURT OF ADMIRALTY.
176S
HUTOfllNSON.
Vids St
Geo. 2, c. 10 [
Sa Geo. 2,
c. 25 : 33
Geo. 2, c. 10 ;
2 Geo. 3,
0. 16.
New Proiy
in C5oTijrt of
AppeftL
condemnation (2 Naval Trade, 245; Clarke, t«, 53; Sea Laws,
Appendix, fo. 90).
Appeals from any Court of Admiralty in the Plantations to such
Commissioners of Appeal as are appointed under the Great Seal
for determining appeals from the Court of Admiralty in this
kingdom, so as the same be made within fourteen days after
sentence, and security given to prosecute the same, and to pay
treble costs if the sentence is affirmed ; 29 Geo. 2, c. 34, ss. 3, 8.
Davis V. CUft, 3 S. H. T. 1769 (Delegates) ; Jenner, for Davis,
prayed Bargrave might be assigned to exhibit a Proxy under the
hand and seal of his client, which Bargrave agreed to, though
he had given a Proxy in the Court below, it being a new cause.
In the case of Oathcart and Hervey v. Stool^ 1735 (1), the Judges'
Delegates assigned St. Eloy to bring in the sort principal and costs
by next Court, and both Proctors to give bail to prosecute by the
last Session, and they gave Bail accordingly
In Sheffield v. Ball, 28th June, 1756 (Delegates, Lee, Ducaryl,
Bettesworth), Farrar prayed CheslyrCs client might be assigned
to give firesh Bail to prosecute his appeal ; which the Judges
assigned him to do, and to give a Proxy from his client, which
the Appellant not complying with, the cause dropped.
Delegates. — We are of opinion the Appellant in this case ought
to give fresh bail, and decree it accordingly.
i76e
3ni S?4w.
Mich. Term.
BOTTOMRY.
DAY, Administrator of DAY v. WOLFK
Cricket OwmberUge.
Drs. Collier and Wytme. Drs. Harris and Calvert.
Q. lithe bond Dr. CoUter. — I am Council for James Day, brother and ad-
o^tlt to be niinistrator of Thomas Day, against the ship formerly called the
paid with B^yyal Charlotte, and now the Charming Nancy. My client claims
a debt owing Thomas Day by James Wolfe, the owner of the
said vessel. The ship, 120 tons burthen, belonged to Mr. Wolfe
[(1) 1 SesB. M. T. 1736, Del. Assign. Book.]
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V.
Wolfe.
HIGH COURT OP ADMIRALTY. 89
of the Isle of Wight, who fitted her out for South Carolina, and 1768
appointed Ephraim Wolfe, his son, a boy about eighteen, com- j^
mander. The ship sailed . . . 1762, and 13th June arrived
at South Carolina ; from which time to March, 1763, she lay at
Charles Town, where, when she arrived, she wanted considerable
lepairs ; and Ephraim Wolfe having no Bills of Credit applied to
Messrs. Dunnington and Smith for money to refit her. They
refusing to lend him any, William Day, brother of Thomas Day,
offered to supply him on his Bills of Credit, and Wolfe, having
contracted with Wagner for a freight to Cowes, accepted Day's
offer and took £412 of him.
15th August, when the ship was going to sail, Thomas Day,
partner of William, not chusing to trust Wolfe, stopped the ship
till his money was paid, which Wagner advanced to WoKe for
that purpose, and the ship accordingly sailed the 15th August
to Rebellion Baad, where she continued to the 15th September,
and then sailed for Cowes ; but, meeting with storms, was obliged
to return to Charles Town to refit. Whilst there Wolfe, being
extravagant, applied to Day for more money to pay the men's
wages, who accordingly advanced him £95 17a. 2i., for which
Wolfe gave him several bills on his father, which were returned
unpaid. Wolfe, finding he could not borrow money on the ship,
on account of her being so much damaged the second time, ap-
plied to the Judge of the Admiralty, who got the ship surveyed,
and the damage being -reported at £550, Wolf^ was advised to
sell as much of the cargo as would raise that sum. It was accord-
ingly put up to auction, and Day, having bought as much as
came to £350 currency, refused to pay WoKe for it ; alledging
in justification of such refusal his having lent Wolfe money on
his Bills, which were returned unaccepted. Wolfe then demanded
payment before a notary, but Day refused without Wolfe giving
him an Hypothecation Bond on the ship for £95 17a. 2d. Wolfe,
after some days, gave him one, on which he paid the £350.
Wolfe then took another cargo on freight, with which he arrived
in the Thames, and made £500 freight. You now see Day's
situation, if he had not secured himself. We have tendered the
BiUs and the Bonds to the father, who refuses to pay both
according to the usage of merchants. We have been at expense
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90 HIGH COUKT OF ADMIEALTY.
1768 in protesting the Bills, &c., and now only demand the money
dI^ lent.
WoLFB. ^' Harris. — I am conncil for Jacob Wolfe, father of Ephraim.
Yon will observe William Day is a partner with Thomas, and yet
is examined as a witness in the cause. Yon will find William
Day came first to Wolfe, and asked to whom his ship ¥ras con-
signed. He replied he had no written orders, but was verbally
consigned to Dimnington and .... Day said if they would
not lend him money, he would, on Bills of Exchange. They
refused on account of Wolfe being a minor. Day, hearing this,
came to Wolfe and made him another offer, to take what money
he wanted of them (i.e. William and Thomas Day) ; which he did ;
and then the ship was repaired, and Wagner freighted her. 14th
August, when the ship was ready to sail. Day would not permit
it without his debt being paid ; which was done, as appears from
Day's receipt of £412 from Wagner. 17th August, the ship
sailed to Bebellion Boad, six or eight miles from Charles Town,
and was detained there till 17th September. The two Days
pursued him thither, and again offered to lend him money on the
credit of his Bills. With much persuasion, and after repeated
offers, he took some. You will find it in evidence that they en-
couraged him in extravagance ; frequently went with him to the
tavern ; and knew of his keeping a woman, and lent him £95 on
five several Bills, and at each loan took a premium ; that the last
was £11, at which time they took a premium of two guineas. He
himself says they made him pay the expenses of the tavern, &c. ;
yet the Bills express the money to be lent on account of the ship,
when, in fact, it was to supply debauchery jointly with them, and
he did not receive half £95.
After the second storm the cargo was sold by auction to repair
the damages the ship had suffered. Day purchased a part, and
then refused to pay for it (because the Bills were returned un-
paid), till Wolfe had signed a bottomry bond stating the money
to have been borrowed on account of the ship. It is true fireight
was made, but not equal to the expenses incurred. On Thomas
Day's death, the mother renouncing, James Day administered and
commenced a sute of Bottomry ; gave a libel stating the ship's
arrival at Limehouse, having made freight, and also the facts
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HIGH OOUET OF ADMIBALTY. 91
above mentioned. 1768^ he gave another allegation^ pleading and 1768
exhibiting the five bills. 1768, he gave another plea, stating the "^^
interest due on the Bills of Exchange, being 8 per cent, legally, -^^^
on which two witnesses have been examined, E. Wolfe and
William Day, partner of Thomas Day. Yon will find the money
pietended to be lent on the security of the ship was lent by
parties who knew the ship wanted no repair ; that it was not
applied to the use of the ship, but spent in debauchery. The
Bond was obtained by compulsion, and by the advice of Mr.
Bunnington, to get the money ariseing from that part of the
eargo Day had purchased ; Bunnington saying he might as well
execute the Bottomry Bond, as it would not avail on account of
the compulsion ; he therefore executed it.
Dr. CoUier. — ^By appointing Wolfe captain the owner had an
opinion of his judgment and capacity, so that no pretence for
non-payment can arise on account of his non-age. The owner
must be conusant that, if he wanted money, he would hypothecate
the ship. Could Wolfe, the father, know anything of the money
being improperly spent when he refused payment of the Bills ?
Did the son inform him of it ? That does not appear. When
Day found they were not paid, he demanded a bond, having no
farther reliance on Wolfe's credit. A sale is made ; why should
not Day be a purchaser thereat? Having the goods, he was
prudent not to pay for them till he had security for the money
lent Wolfe was inclined to cheat the gentleman at Carolina by
giving sham Bills, which he knew would be protested. How
could Bunnington pretend the Bond was good for nothing ? The
Bills were so. Day was under a necessity to take the double
security. It was a collateral security. It might be material to
shew the money was not bond fide advanced on the credit and
usual custom of merchants. The master had an undoubted right
to hypothecate the ship. It might be material, too, to shew they
had taken any undue advantage of the youth, when drunk or under
lestiaint. Not having done so, we must be supposed to have acted
\b(mafide\y and so, of course, to be entitled to the money claimed.
Dr. Wynne. — Cumberlege prayed the cause .to be deferred till
he had an opportunity to contest the administration in the Pre-
rogative Court. We did not object to the son as a witness. If
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92 HIGH OOUET OF ADMTHALTY.
1768 Williams had been partner with Thomas Day, the Bond must
Day have been made to both ; but Thomas appears to have been only
Wolfe, William Day's clerk. Three parts of Wolfe's evidence is extra
artievlvm. On the Summary Petition he has in fact admitted as
much as we have laid, viz., that the ship could not proceed without
[repairs]. In point of probability no argument can be offered to,
or cognizance taken thereof by the Court, if the circumatances
necessary to support that probability are wanted. I expect to
hear it contended that a Bond given by a minor is void« That is
not so in a case of bottomry ; for a person who has no property,
and is only a servant, can't pawn. Necessity alone makes these
bonds legal. The same reason holds with respect to minors, the
necessity ; otherwise the lender might be imposed on as to the
age of the borrower. Day swears he believed him to be twenty-
one or upwards. The gentlemen have not taken the proper
method to put the matter in issue before you. Is it probable that
the two persons who had so distressed him as not to let him sail
should offer him money afterwards, and that he should make them
his companions and associates in debauchery ? It is said he had
£412 of them. Did they then take any Bond or Bills, or what ?
The gentlemen will say we have read no Interrogatories, and need
not produce the note. If you had exhibited the receipts given by
Day, or the Bill of Sale assigned over, you would have brought it
in properly. This now offered is not the best evidence the nature
of the case will admit It should have been by plea to give us an
opportunity of defending ourselves. How could William Day
contradict Ephraim Wolfe ? He could not know what he would
say. We have proved the money paid and the bond given. We
are entitled to the interest, and all expenses of exchange, re-
exchange, and costs.
Dr. Harris. — Wolfe's evidence ought not to be objected by
them, as they produced him. The sole question is, whether the
money was squandered or not, and was it laid out on the ship ?
Wolfe says he did not receive half the money. There was a
premium on £11. Tou have nothing to do with the expenses of
exchange and re-exchange and the interest. The Bills of Ex-
change were given a year before the Bond was given. I say this
Bond is not of such a nature as to be suable here. No bottomry
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HIGH (X)UET OF ADMIRALTY. 93
bonds are, unless the bottoms aie solely answerable. If yon haye 1768
no jnrisdictiony all will be liable to be revised. It must not be a p^T
counter security, for anything prior or subsequent, but depend on ^^lfb.
the success of the ship. It must not be a collateral security for
the BiUs of Exchange. If you think you have jurisdiction, I will
proceed. It is incumbent on the lender to shew the money was
laid out on the ship. We have positive evidence it was not.
William Day does not say it was ; to which Dr. Wynne observes,
how should he know ? I answer, he ought to know. Wolfe is
their witness, therefore they can't object to his testimony, though
he is the son of the defendant. He says William Day told him
he was partner with his brother. If that is fact, he was entitled
to a moiety, and is consequently an interested witness. William
Day teUs you he was four years clerk to his brother ; when that
clerkship ceased, he does not inform you. The question is,
whether the money was squandered or laid out on the ship.
Wolfe insists he did not receive half the sum charged, and what
he did receive was actually laid out on the ship. But it may be
asked, whether Day knew it was not laid out on the ship. I
answer yes, for he and his brother were present at the spending
the money. It was borrowed at five different times, and two
guineas premium taken for the loan of £11. This is a farther
presumption that it was not laid out on the ship. The true
interest of a Bottomree Bond is 15 or 20 per cent, on which you MoUoy, b. 2.
have jurisdiction. Here don't appear any interest at all agreed ^ ^^\ 5 ^^
upon. The probability is the money was lent scienter that it was pajqnen/aiter
not to be expended on the ship. wX^^^
Dr. Caivert. — The Days don't seem to think they have a good a^jording to
. , time ; oom-
cause, by the great delay they have used in bringing the sute moniy after
(f.e., three years) to a hearing. They gave a libel in 1765 ; 1766, LVeh^d^
they gave an additional article without examineing a witness ; ^^ *^® y®"-
1768 they gave an allegation, on which they examined two wit-
nesses. This dilatory proceeding is always suspicious. We on
the contrary gave no plea, so cannot justly be charged with laches.
The question is, whether such a case is laid before the Court as
to induce a belief of the fairness of this Hypothecation Bond ?
William Day's evidence is not so fair as it is pretended. He has
not given a single date. He may have told the truth, but not
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94 HIGH COURT OF ADMntALTY.
1768 the whole truth. He may have jumbled together the monies
Day lent at Charles Town with that lent in Rebellion Boad. Great
WoiwK. reflection arises on Day from what we have squeezed out of him,
from an Interrogatory in answer to which he says, the ship arrived
at Charles Town the latter end of 1762 or beginning of 1763 ; by
which any person would understand December, 1762, or January,
1763, not June, 1762. The BQls being drawn in August, 1762,
this account shews Day has wilfully endeavoured to mislead, or
that his bad memory has disabled him from ascertaining dates.
And if he is a partner with his brother, he is on that account to
be deemed a partial and interested witness. Objection has been
taken to Wolfe's evidence as a party interested ; but they forget,
surely, he is produced by them, which they should not in prudence
have done if they thought him so. They say, too, his Deposition
is extra (vrticvlvm. The Court is not so nice in respect to every
particular which is not strictly to the purpose, but admits as
proper whatever is in general relevant and arises out of the
Article, as an explanation, though the witness does not exactly
reverberate the terms. The answers to the Interrogatories are as
full as his Deposition. We had a right to interrogate, in order
to remove any doubts which might occurr. I did not mean to
take the exception of minority in the party, because I am sure it
is uncandid ; and I doubt it being well founded and legal, when
I know he was appointed to the command of the ship. Bun-
nington's advice was not dishonest, as he knew the unfair advan-
tage Day had taken of Wolfe. Atkins' account is not incon-
sistent, when he says one of the men quitted the ship and entered
on board a man of war ; the commander of which, demanding the
man's wages, Day paid them. This he might do without Wolfe's
order.
I will now consider in what circumstances a master may hypo*
See MoiJoy, thecate his ship, viz., when he is in a foreign country, where none
§5 h! isf of the owners are present, where he is in want of money, has no
P' 255, goods to barter, and the voyage will be lost without such hypo-
thecation. The view with which it is allowed is simply that of
refitting the vessel, to enable her to compleat her voyage. In
the present case no money was wanted or expended on that
account, which Day lent. I do not say it is necessary for tho
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HIGH COUBT OF ADMIRALTY. 95
merchant to see the money laid out, but he should be satisfied the 1768
ship is in such a condition as to want the money borrowed for day
such repairs, without which he cannot sue the owners and recover, wolfb.
The captain has no more than an agency to carry the ship &om
port to port, not a property in her quoad captain. If I lend a
man money on a private account, I must accept of his private
security; and no hypothecation bond given by the master for
money lent for his use can affect the ship or owners ; See Bridge^
man^s ease (1). Philip Bridgeman sued Williams in the Admiralty
Court The case was this: "Philip Bernard, owner of the
Bonaveniurey sent her to Spain and made Williams master of her ;
who on the high sea borrowed £50 of Bridgeman, and impawned
the ship for payment thereof; which returning home, Bridgeman
arrested the ship in the Thames by warrant from the Admiralty
Court Whereupon Bernard came into the Admiralty Court, and
claimed his property, denying Williams was owner, or had any
power to pawn the ship ; yet the Court gave judgment against
the ship for the debt Whereupon Prohibition was granted by
the Court of Common Pleas ; who were of opinion that if a ship be
at sea, and take a leak, or otherwise want victual or other neces*
saries, whereby she be in danger, or the voyage defeated, that in
case of such necessity the master may impawn for money or other
things to relieve such extremities by employing the money so.
But here neither the contract nor impawning were said to be for
such cause, nor was it said to be at sea, nor was there any colour
that for the general debt of the master they should proceed
against the ship of another man. So Prohibition went." If the
captain can get money by any other means, if he has goods to
barter, he cannot hypothecate the ship. That was the present
case. There was no necessity of giving an hypothecation bond,
for the captain appears to have had a credit of £412 with Day
before. The principle is irrefragable — that a captain can't bind
his owners in bottomry unless he has no other way to obtain
money. Hypothecation is strieti juris ; and if the claim does not
come within that description, it will not avail against the ship.
The interest Dr. Harris speaks of relates to Bills of Exchange,
and can't bo recovered here.
[(1) Hob. 11.]
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96 HIGH COUET OF ADMIBALTY.
1768 Dr. Collier. — I deny the principle stricti jwis in the extent it
DAT is laid down, as far as it relates to the lender, and master, and
^ohWE. owners, though it may operate as between the captain and
owner. The lender can't inquire into the necessity. If he takes
an improper bond, he will not recover. Otherwise he may have
"* his remedy against the owner, and he against the captain. The
Doctor and I are equally ignorant of the custom of merchants. If
you think we can recover on our bond, you will leave the
damages to be liquidated by the custom of merchants. Dr.
Harris mistook when he stated the interest of 15 or 20 per cent
to be an hypothecation bond. He meant a respondentia bond,
where nothing is to be paid unless the ship returns to her
destined port. These are personal ventures, which bind the ship
only, and are favoured for the benefit of trade. The gentlemen
have not disputed but that a collateral security might be given*
It was not necessary when the Bills were supposed to be in a
course of payment, but became so when they were returned pro-
tested. Tou must therefore at all events pronounce for the Bond.
Dr. Wynne. — ^It is certain the bond before you is suable here
or nowhere. For Ephraim Wolfe having neither a general nor
special property in the ship, the sute could not be brought at
Common Law. In most Hypothecation Bonds which I have seen,
mention has been made of Bills drawn, and that the Bond was
given as a collateral security, in case such bills were not paid.
The owus probandi lies on him who would avoid payment of the
bond. He must shew the money was misapplied. In the present
case I admit the money was lent on the bills drawn without an
Hypothecation Bond given. The demand for interest, exchange,
and re-exchange, comes very properly under the bond, which
specifies costs and charges accruing &om non-payment of the
Bills of Exchange. Now, will anybody deny that these expenses
arise from the non-acceptance of the bills drawn for £95, and the
interest and damage accruing thereon ?
Sir Thomas Salisbury, Judge. — It seemed extraordinary that
Wolfe should send a boy of eighteen on a trading voyage to South
Carolina without letters of credit. It is clear from the evidence
that Smith and Burrington [qy. DunningtonJ refused to lend the
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WOLPB.
HIGH COUKT OF ADMIRALTY. 97
money on account of his youth before Day offered. I cannot 1768
leam from the evidence how the sum of £412 175. furnished by p^^^
Day was disbursed. It is alleged to be in repairs of the ship.
Day had no security but the Bills of Exchange drawn by Wolfe
on his father, the owner. On the ship being forced back a second Payment of
time by a storm she wanted further repairs ; and, having no other or^ with ^
way of raising money for defraying the expense thereof, was ^^^^ ^^^
obliged to dispose of part of the cargo. I think the Bond good ; costs accrued
and decree it to be paid with the interest, damages, and costs Q. Appealed?
accrued ; to be heard thereon next Court
[N3. — Some proceedings were taken upon the appeal ; but eventually the
case was on the 1st February, 1771, " alledged to be agreed " ; see Delegates'
Assignation Book.]
DUNLOP V. PROCEEDS OF THE NEPTUNK 1769
BOTTOMBEE. 4^A Sess.
Mich, Term.
Charles Dunlop and Robert Powles v. The several sums of q. whether
money arising from the sale of the ship Neptune, Joseph ^n^^u i,^
Shank, master, her tackle, &c., now remaining in the Re- prefewed to
, . „ . , f , . oneofapnor
gistry, and agamst all persons m general ; and also agamst date.
William Price, William Host, Edmund Host, and Adam
. . . intervening therein in a cause of Bottomry.
Also
William Price and William and Edmond Hest against
The sums of money, &c. (as before), and against Charles
Dunlop and Robert Fowles.
OostUng. Collins.
Dr. Wywne. Dr. Calvert.
Br. Calvert.— I9\k March, 1765, Messrs. Price and Hest
brought their sute, and obtained three defaults. Then OoatUng
appeared for Dunlop and Fowles* Our assiduity gives us the
preference, our demand being prior to theirs and stopped only by
the prior demands of the seamen for their wages.
5th January, 1768, Captain Shank arrived at Charles Town,
H
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98 HIGH COUET OF ADMIKALTY.
1763 South Carolina, where £1098 was advanced to him for the repairs
DuNLOp of the vessel on a Bottomry Bond, as appears from his affidavit
PRooifflDs OF Tl^^^^y P^r ^^*' is not too large interest, because it depended on
THE Nei-tunb. the voyage being completed for the payment to take place ; 'twas
on the condition that always appears in Bottomry Bonds. They
claim under a Bond of a prior date. The question therefore is,
whether the Bond would be recoverable if it stood substantively
by itself; and whether our claim ought not to be satisfied prefer-
ably to theirs. The recital of the first Bond is that he advanced
the money at 20 per cent. ; but that is contradicted by proof. It
would be fraudulent and shamefuU to assert the money was ad-
vanced, when in fact it was not. No necessaries are said to have
been wanted, no repairs made, no monies advanced. The claim
is not for £400 but £157. Could you, on a Bond at land, with a
condition for payment of £100, be admitted to claim only £50 ?
The Court in such case would naturally ask, why you did not
claim £100, if any ; and would not suffer you to say you would
claim the rest in another way. The Bond in Dominica and the
Bills could not be recovered here, if put in sute, because you
cannot cover the money on another security which is not suable
here. There were correspondents at Dominica, who were to ad-
vance the money wanted, or, to use the mercantile term, "to do
the needful!." There was a recommendation, a correspondence,
and letters of credit, so that the captain was not in that forlorn
situation he should be to bind his owners. The master had a
power of attorney, which shews he had a credit at Dominica, or
would have had no use for that power. The expressions are not
the common words of an hypothecation Bond. One condition of
the Bond was that the money should be lost if the ship did not
arrive in the Thames. The voyage was in a manner lost at
South Carolina, as she could not have proceeded thence without
our money. Suppose that when an Hypothecation Bond is given,
the whole ship, &c., is pawned, and no other can be given. It is
impossible a captain can carry with him a security that he has
not hypothecated the ship before. No merchant can tell, on a
ship's arrival, that she is not already hypothecated. Therefore
the object of the power can't be answered ; for a ship could not
at sight carry faith and credit. There is no hardship in the case.
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HIGH COURT OF ADMIRALTY. 99
because the captain cannot hypothecate but when the ship is in 1769
distress. Dvhwf
Sir TTwmas SaUahury, Judge. — This case is very particular. TimNMruNB.
At the outset the ship had two different captains. I don't see
how Shank attained the command. The litigation was commenced
in the Vice- Admiralty Court at Dominica. There is no account
of the voyage, or how the ship came to Charles Town, except
from Mr. Host's affidavit. No particular distress appears to have
happened at South Carolina. Dr. Calvert insists the latter Bond
should operate first, because the ship could not have proceeded
fix)m Dominica to Charles Town without the money advanced by
his client. I should be glad to consider this point, how far a
latter Bond should take plcLce of one of a former date. I shall
therefore deliberate till 1 Sess. H. T. 1770 (when the
Judge was of opinion that the Bond of the [prior] date should
take place).
[2 S. H. T. 1770. " The Judge, at the Petition of Gostling, Junior, pro-
nounced for the Bottomree Bond on the part of his clients, and that the said
Bottomree Bond, being first in date, as appears from the proofs before bim in
this cause, ought to be first paid and discharged out of the moneys existing from
the sale of the ship Neptune and remaining in the Registry of this Court ; " see
Ad. Gt. Assignation Book. There was no appeal. The case is cited in/raf
p. 135, nom, Dunlope v. Fowled]
DELEGATES. 1770
CLIFT AND MYRYLEES, late Carpenter and Second Mate i^^^i Feb.
OP the "Nancy" v. DAVIS.
Bargrave. Jenner.
Drs. Collier and Wynne. Drs. Harriot and Calvert.
Dr. Harriot. — This was a sute of snbstraction of wages brought Q- Is the Ap-
by . . . Clift and James Myrylees, late carpenter and second
mate of the Charming Nanctfy George Arnold, master, against
Thomas Davis, now or late owner of the said ship. On Davis
being served with the warrant and being taken into custody, he
gave bail to the Marshall to appear and answer. The bail bond
was shown in the usual form and [Davis] was therein improperly
H 2
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100 APPEAL FROM
1769 styled owner, under which description he gave baiL 2 S. IL T.
Cui^ 1768, which was the first day after the arrest, Jenner alledged
Da^?i& ^P^ ^*^ *^** Davis is not, nor ever was, owner of the Charming
Nanctfy or anywise interested therein, and prayed he might be
dismissed from further observance of this sute.
B.D. The Judge rejected Jenner's Petition.
Then Bargrave gave a Summary Petition, stating the special
facts; on which account we objected thereto, but the Judge
admitted it, viz., that the ship was wrecked on the French
coast, but some of the cargo, as also of the masts and rigging,
were preserved; that Davis had promised to answer for the
wages ; had asserted himself owner, and cleared out the ship
as such. This was denied by Jenner, who said Davis had never
any property in the ship, which belonged to Friedenburg and
others, whose property it remained to the time of the wreck ; that
Davis did not act as ship's husband, but merely as Friedenberg's
agent or clerk ; that the seaman applied for wages at the counting
house, and he told them, as the ship was lost, he would be entitled
to wages only for as much as was saved ; which they should be
proportionally paid. To support this Jenner offered Friedenbei^'s
affidavit ; and offered, if they would dismiss Davis, he would
appear for Friedenberg, and the cause should go on against him.
This being refused,
14th November, 1768, Jenner gave an allegation reciting the
second article of their allegation pleading Davis the owner, and
in contradiction thereto alledging that Friedenberg, on 30th
December, 1757, bought the ship, &c., of George Hardy and James
Wellford, executors of Adam Spencer; and that Friedenberg
afterwards sold three-fourths thereof to sundry persons ; and in
supply of proof exhibited the bill of sale from Hardy and WelKord
to Friedenberg, and also Friedenberg's indorsement thereon by
way of memorandum of the transfer of three-fourths as above-
mentioned. This the Judge rejected and assigned the cause to
be heard summarily ; from which we appealed, as it precluded us
from going into any plea as to the qtuintum of wages, or anything
to repell the charge.
Dr. Collyer. — The King's Advocate seemed satisfied that this
is not an appeal from a grievance having the force of a definitive
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HIGH COURT OF ADMIRALTY. 101
^ntence, he opening the debate^ to which in that case we should 1769
have been entitled ; it being a constant rule for that party who has curr
a sentence in his favour to begin, and the reverse when the appeal davis.
is from an interlocutory decree. It is likewise a rule that appeals
do not He from any ordinary act of the Judge of the Admiralty,
or from any Act which has not the force of a definitive sentence.
This was in the first instance a cause of substraction of wages.
We were hired in 1767 to go to Jamaica and back to London.
We arrived at Jamaica in April, and having loaded returned on
our homeward-bound voyage, and having arrived in the Channel
on the 4th of October were, in a fog, wrecked near Dunkirk.
The mariners staid by the vessel and saved a considerable part of
the cargo, viz., 20 casks of rum, 30 bags of cotton, and sundry
other articles, and then returned to London, where they applied
for their wages to Davis, in whose name the ship had been
cleared out at the Custom House as a part owner, and the men
hired. He said they should be paid when the salvage was esti-
mated. After having waited for their wages some time in vain,
Clifl and Myrylees took out a warrant against Davis in the
foUowing terms : " Arrest Thomas Davis, now or late owner of the
Nanetf, &c. ;" who was accordingly arrested, when Jermer appeared
for him and gave Bail for Davis in the terms of the warrant, entered
no Protest as in an improper action, but desired to be heard on
his Petition. This, together with his clearing out the ship, and
promising to pay the wages, was an admission of his being owner.
If he was not, he should have appeared under Protest, and desired
to be dismissed ; instead of which, he only declares it in Acts of
Court, and prays to be heard on his Petition, which the Judge
heard and overruled, and in that Jenner acquiesced without
appealing. Having examined five witnesses on our Summary
Petition — 2 S. M. T. — a whole year after the examination of
our witnesses when we prayed publication, which was decreed,
Jenner asserted he gave an allegation, on admission of which the
Judge assigned to hear the 4th Session ; and if not admitted, tlie
cause to be heard summarily, from which Jenner has appealed.
Jenner has no pretence of appealing against the admission of an
allegation he had before acquiesced in. When the Summary
Petition was given in we prayed answers, which Jenner gave, and
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102
HIGH COURT OF ADMIBALTY.
17G9
Davis.
1ii(H8L'd with
thereby perempted himself. -For if he meant to appeal, he should
have given them under Protest ; which not having done, he is
out of time^ and has now no right to bring such appeal.
The Judges Delegates, Gould, J., Perrotty B., Drs. Hay, WaU,
Ducaryl, Bv/rreUy Compton (1), having heard the counsel open, were
unanimously of opinion that Jenner, having by various acts
admitted the ownership of his client, was not now at liberty to
appeal, and therefore* dismissed it and condemned the appellant
in £69 costs.
N.B. — It having been insisted that Bail was always given in
the terms of the arrest, Dr. Wynne produced one (of subsequent
date to the case in question) wherein Stevens appeared under
Protestation.
1770
4th 8r.ie.
En»f. TtTm.
Diitrb or
French pro-
perty ?
Q. IsEoc-h
entitled to tbf3
bhip and thtit
piirt of i]\e
f^rgo which
WOA liid pro-
perty?
SUSANNA MAKGAKETHA, formebly the WILLIAM OP
CALCUTTA,
The King against the said ship and goods as prize and perqui-
sites of Admiralty and against Edward Boch, a subject of His
IVIajesty claiming the ship and part of the cargo as a Becapture.
QostUng. Drs. Marriot & Calvert. Altham. Drs. Harris & Collier.
Drs. Wynne & Seven. Oostling, Junior.
Dr. Wynne's case relates to the attestations.
1769y 3 Sess. M. T. — The cause stood on admission of Altham
and Oostling Junior's claim precisely. Altham exhibited certifi-
cates in Dutchy with translation^ setting forth his client was ill,
and could not attend the hearing of the cause, and prayed it
might be continued to 1 Sess. E. T. following ; whereupon the
Judge assigned the cause for Informations and sentence precisely,
2 Sess. E. T.
1 Sess. E. T. — Altham brought in the attestations of T. Boddam
and others in presence of Qostling, Jtmior, who alleged the cause
stood assigned for sentence and Informations precisely next Court,
and objected to reading such attestations now brought in, as too
late in point of time. The Judge assigned to hear on Petitions
of both Proctors next Court. Oostling, Junior, apprehends his
[(1) See Delegates' Assignation Book, 1769-1774, fol. 53.]
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HIGH COUBT OF ADMIEALTY. 103
objection well founded, as the cause was concluded in Michael- 1770
mas Term last, and insists, if read, they are foreign to the present thb
question — Whether ship and goods were French or I^^^ch ^^^^^^^^
property at the Becapture ; being calculated to shew that the
merchant ships of different European nations haying settlements
or factories in India are permitted, whilst at peace with each
other, to 'trade in each other's parts on payment of the usual
duties.
Edward Boch bought this ship in July, '61, at Bombay, of Relative to
Messrs. England and Hunter for £4250 sterling, then called the ^ °*^'*
William; under which name he navigated her, as master, to
Calcutta in December, 1761 ; from whence she sailed in March,
1762, for Bombay and Surat ; but 31st March was taken off Telon
[?] by the Fidelle frigate, and sent to the Mauritius. Captain
Boch, after eight days' detention on board the William^ was set on
shore at Negapatam, a Dutch settlement, 11th January, 1763.
This ship was retaken with part of the former cargo on board
by the SuUivaUy trader, and carried to Fort William in Calcutta,
being, as pretended, bound to Negapatam. The Company's ser-
vants at Fort William sold the ship and cargo, and remitted the
produce to the Company in England, where it remains. They
also remitted the ship's papers and proceedings had thereon ; and
as the SuUivan had no Letter of Marque, the Company sent the
whole transmission to Mr. Orespignyj the King's Proctor in the
Admiralty, who, by orders from the Admiralty Board, 27th March,
1765, brought them in to the Admiralty Court, in number 38,
including one examination. And at his Petition a Monition was
decreed against the ship and goods to shew cause why they should
not be condemned as Prize and Perquisites of the Admiralty.
1765, 27th March. — The Monition was returned.
18th April. — A claim was given on behalf of Jan. Marcus
Scheeper for the ship and for the cargo as the property of him and
other Dutch subjects, and for costs and damages. The usual bail
was given for the claimant. To whose claim Mr. Peter Muilman
annexed an affidavit^ that he was agent for Scheeper, and had
received orders from him to give such claim, which he believes
just, and that Scheeper will make full proof thereof: and that no
French or Spanish subject had any interest therein. The
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104 HIGH COUET OF ADMIEALTY.
1770 cause was continued to M. T. 68, waiting for proof coming from
Thii Scheeper.
Mj^^AfiETDA •'•^ *^® summer of 1768 Koch came to England, and enquiring
at the East India House for his share of the Becapture, was in-
formed Scheepers had insisted to the Governor and Council of
Fort William that he and Mr. Van Tellenger, the Dutch Govemcw:
at Negapatam, were owners of the ship and cargo. He waited on
Governor Van Tellenger, who was then in London, and informed
him he had no interest in the ship or cargo ; that Scheepers had
^ent him a Letter of Attorney to claim ship and cargo as their
joint property ; but he would not be concerned in so iniquitous
a transaction ; whereupon : —
1768, 7th October, Roch gave a claim for the ship and that part
of the lading which was his property, when she was retaken, viz.,
G bales coarse silk, 1 ditto silk taffeties, 2 ditto different silks.
To this claim he annexed an authentic copy of part of the general
letter of the Governor and Council at Bengal to the Gonrt of
Directors, relating to the Prize, shewing they had given orders
for the Depositions of the master and OflScers of the Prize to be
taken. That the mate was examined, but the Captain had ran
away. He also annexes Robert Gregory Esquire's aflSdavit to
prove the identity of the ship William, and that when taken by
the Fidelle it was Roch's property.
2nd December. — The Admiralty Proctor and Roch's Proctor
pressed the hearing of the merits, and the Court assigned to
hear on the claims and on Petition of all Proctors, 1 Sess. H. T.
ensueing.
1769, 14th Jan. — Muilman made an affidavit to found a prayer
lor delaying the hearing, which was objected to ; but the Court,
on hearing thereof, adjourned hearing the merits to 1 Sess. M. T.,
and then to hear on admission of the claims; and no farther
proof having been exhibited the cause now stands for the final
hearing.
No. 30 in the transmission from the East Indies is the examina-
tion of . . Herigaut, mate of the Prize, who says : " He was a French
Officer ; that the Prize was bound to Negapatam, and came from
the Mauritius ; that as a French pass could be of no service to
the Prize, Scheeper took a copy of the pass he had from the
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HIGH COUET OF ADMIRALTY. 105
Goyemor of Negapatam for another yessel." Various papers are 1770
before the Court which prove the facts set forth, which may be Tra
objected to being read, because not brought in on Oath, accord- MABGA^raA.
ing to the directions given to the cruizers bringing in and pro-
ceeding against Prizes. But it is to be observed there is no
Standing Commission in the East Indies, and also that the sute is
brought by the King who is not bound by such restrictions. On
the whole, the ship was taken by the French and carried into the
Mauritius, and retaken on a voyage immediately from thence ;
consequently there could be no alienation of property, as none
but French subjects are admitted at Mauritius ; which destroys
Scheeper's claim, and subjects ship and cargo to condemnation
as Prize and Perquisites of the Admiralty, saving to Mr. Boch
that part of the lading which he has proved to be his property
on payment of one half for salvage, the ship and cargo having
been in the possession of the enemy above 96 hours.
N.B. — There are three affidavits of Messrs. Boddam and
Fletcher, saying the Ports in the East Indies are open to the
different European Powers to trade on time of peace, on paying
the usual duties.
Dr. Marrioty for Scheeper, objected to Br. Wyrm^a opening for
Mr. Boch till the question of Prize was determined ; which being
overruled, he then insisted on his right of opening before Dr.
Wynne, as his client was prior in point of time. He objected to
reading Boch's affidavit as irregular evidence and containing
redundant matter (though he allowed Boch's claim to be regular
and on oath). He said Herigaut spoke to no French pass, but to
a copy of a Dutch pass from the Governor of Negapatam for a
different ship. He said the case stood on a different footing,
happening in the East Indies, from what it would if it had arisen
in the West Indies. In the former no special license is neces-
sary for entring neutral ships, as in the latter. The ship, there-
fore, must be considered as purely Dutch and privileged by the
Treaty.
Dr. Wynne. — The pass is granted by Scheeper, the owner
himself (representing his nation), to the French master. No. 8
is a pass granted by Governor Pigot to Cossart, the master, as a
French prisoner of war. There is a manifest specifying the
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106 HIGH COQKT OF ADMIBALTY.
1770 cargo, but not setting forth on whose account There is a letter
xi^i from Scheeper to Governor Vansittart claiming the ship and
M-^i^aBA. ^^S^ ^ property of himself and Governor Van Tellingen, and
enclosing an invoice of the cargo. If it is regularly considered
as a Prize Cause, there is no paper before the Court to warrant a
sentence.
Van Scheeper, in his letter to Mr. Vansittart, states " that the
ship was taken under pretence ; the passport made out by me
was not a legal pass." He next states the particulars of the
cargo, and annexes an invoice, which he says " belongs to the
Honourable .... Van Telligen and me, the underwritten, and
no one else, whatsoever. The same was purchased by me at
Mauritius, after being first declared for lawful! Prize by the Gx>ver-
nor and Council there, as you may see by the annexed pass-
port, the Bill of Sale, and the Condemnation. The said passport
is made out by me from from the confidence reposed in me, and
being the only person who at that place could represent my
nation ; and the contents thereof held sufficient, so far as that
the said ship was not at a place where a proper person could be
found who was sufficiently authorised for making out of Com-
missions." He adds, "It was bought with the Governor of
Coromanders money, though in my name only."
Dr. Harris. — Scheeper running away shews a consciousness of
its being a French ship. There is an Ordonnance of the French
King creating a forfeiture of any French ship having a foreign
commander. The want of a pass would alone render the ship
confiscable, though the treaty took place. Scheeper don't pre-
tend the pass was on oath, as the treaty required. The ship
must be deemed an adopted French ship, because it comes to a
place where none but a French ship can come in time of peace.
This creates a violent presumption of its being enemies' property ;
in which view you will condemn the ship and cargo as perqui-
sites of the Admiralty ; and when Boch proves his claim after-
wards, it will be properly considered.
N.B. — A packet of letters were found on board, concealed by
Captain Cossart, containing intelligence of public affairs sent
from the French at the Mauritius to the French on the Coroman-
del coast. Mr. Vansittart and the Council of Fort William in
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HIGH COUET OP ADMIEALTT. 107
their letter, 2l8t Feb., 1763, to Mons. Taillefer, the Director, and 1770
to the Council at Houghley, say : The
" We have received your letter of the 19th instant. In answer mj^^^ba.
to the arguments you make use of relating to the Svscmna Mar-
garetha, we are to observe that by the Ordonnance of the French
King, at the commencement of the present war, in the 4th and
10th Articles, it is said : If the Supra-Cargo, Clerk, or Sea Officer,
should be natives of any place at enmity with France, the ship
should be declared good Prize, and if the States of Holland shall
grant passports or letters of license to owners and masters of
ships who are subject to an enemy, except such owners and
masters who before the declaration of the present war were favored
with the freedom of Holland, their ships and goods shall be
confiscated, seeing they must be considered the property of the
enemy ; and as we understand the same orders have been issued
from our Admiralty, it must be a strong argument towards render-
ing the present a lawful Prize."
Dr. Wyrme. — I admit much irregularity in this cause ; and
that, if you adhered strictly to the rules prescribed by the Act of
Parliament, you would have no evidence before you to determine
this question on either side ; there being no affidavit that any of
the papers produced were found on board. And though there is
one witness examined, yet not being examined on the standing
Interrogatories, it is no examination in law.
Scheeper claims as a subject of the States-General and the
ship as a Dutch ship. How has he made this out ? It is to be
fortified by a pass made out according to a form there prescribed.
The whole then must depend on the validity of this pass. Now
I never met with a case where a person has come with greater
efirontery before a Court, and with so little colour of right.
The pass is a mere forgery and so little capable of bearing exam-
ination, that they would not have produced it unless obliged for
want of other evidence. They ground their claim on a right of
purchasing a condemned vessel at the Mauritius. That right I
deny. If the suspicion of Scheeper's malajides stood only on
Boch's evidence, to be sure it ought not to have availed ; but
when coupled with various circumstances of suspicion, it will be
deemed of weight. There is no Dutchman on board. The ship
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108 HIGH COURT OP ADMIRALTY.
1770 is manned entirely with French, and comes from a French port
^^ Under such circnmstances it must be condemned for want of
UxmxumfiL ^^'^^^^^^^ J ^^ French ship being incapable of bearing testimony
JlagrantB bdlo. The affidavits of neutrals having liberty to
trade at the Mauritius and Bourbon came in so late, that we
bad no opportunity to contradict them.
Dr. Marriot insisted that the Court was bound by the Act of
Parliament, so could attend to no evidence brought through the
chaimei of the East India Company.
Sir r. ScUisbtm/y the Judge, decreed the ship and cargo to
be liable to confiscation as the property of the enemy ; and con-
demned it as Perquisites of the Admiralty (from which AUham,
on behalf of Scheeper, appealed) ; liberty being reserved to Mr.
Eoch to make good his claim.
FORFEITURE.
rm HUMMERS AGAINST ELPHINSTONE (1).
4th SeM. Orene* Major,
Br. Wynne. Dr. CoUyer.
Q. Shall Biiip Dr. Wynne. — 1767. The schooner Betsy, T. Hardy, master,
c^jnJismtod an botind to Newfoundland, took on board a chest of tea, for which
"^"'j:*^''^ the follo^^ing cocket was given, in which the words scored under-
oocket ijciii^ neath appear wrote on an erasure :
wrote on on
imutJntii?!i (London, Know ye that Cyrus Maigre hath entered 338
of the officers pounds Bohea tea at f of United Co., [qy.] 15 July, 1765,
Uo^ae? 20 \ Lette unladen, and now in the Betsy, Thos. Hardyng, of
Newfoundland, as per certificate 2/9 Decem. 1767, in the
,8th year of King George the Third.
Wm. Bertis, D. Coll.
Wm. Eichardson, P. Com.
J. Baw, T.B.
[(1) In the author's index the dates given as 1770. This appears to be a
of ilm mid tiio two following cases are mistake.]
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HIGH OOUBT OP ADMIRALTY. 109
Dr. CoUyer. — The Judge at Newfoundland pronounced the 1770
338 pounds of tea confiscable. By this the vessel is become summebs
liable to forfeiture for erasure of the cocket, pursuant to 13 & 14 elphinstonh.
Car. 2, which decrees £100 forfeiture for an erasure of the cocket ;
4 Geo. 3. £500. A Libel of Appeal has been [given], and an
allegation, on which three witnesses are examined.
Mackay, an excise officer in London, who answers to 5th Inter-
ipgatory : There is an Act of Parliament which makes an erasure
of cocket create a forfeiture of ship and goods; but he don't
think the Act meant to lay these penalties on mistakes in
business.
Baldwyn, a Clerk of the Custom House, who owns he was the
writer and eraser of the cocket, but says it happened in the hurry
of business ; don't think the Acts extend to mistakes in business.
Cyrus Maigre, the broker concerned, who went to procure the
cocket, says, it being St. Andrew's Day, 29th November, the
business could not be done till 1st December.
Br. Wynne. — I am Council for Messrs. Summers & Co., the Ap-
pellants, whose ship Betsy was seized, 1768, by Capt. Elphinston,
of the Pearl man-of-war, and proceeded against in the Vice-
Admiralty Court at Newfoundland for a forfeiture on account of
an erasure of cocket. The hearing was postponed at the prayer
of Summers in order to get information from the Custom House,
which was refused ; and sentence given condemning the schooner
and tea to be forfeited on account of the erasure of cocket, con-
trary to the Acts of Parliament in that case made and provided.
The ship was afterwards appraised and suffered to proceed on her
fishing voyage.
Neither 13 & 14 Car. 2, nor 4 Geo. 3, mention anything of the
forfeiture of the ship, but only lay penaltys on the officer making
out such cocket ; so the sentence can't be justified thereby. The
Acts must be strictly pursued. The Judge can't inflict a different
penalty from what the Act prescribes. But I have better ground
to stand on than taking advantage df any slip in the decision of
the Vice- Admiralty of Newfoundland ; viz., there being clearly
no intent in the party to defraud the Bevenue. The mistake
arises from the officer of the Bevenue, for which the merchant
cannot be justly deemed responsible.
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110 HIGH COUBT OF ADMIRALTY.
1770 Sir T. Sdlisinmf, Judge. — The Judge of the Vice-Admiralty
StjMjitEHa did right in justifying the seizure. I think Captain Elphinston
Eum^^roHE j^s^i^ble, and take time to consider the other parts of the
question,
3 S. Trin. Term. The Judge restored ship and cargo, and
conden^med the tea.
Appoiiinl Green appealed.
[The appeal in this case was heard on the 18th of February, 1774, by the
Delegates, Perrot, B., Willes, J., and Drs. Ducaret, Harris, Calvert, and Ciompton,
when the following decree was made :
The Court " pronounced for the jurisdiction, or rather that of our Sovereign
Lord the King, and reversed so much of the decree of the Judge of the High
Court of Admiralty of England, from whom this cause is appealed, as con-
demned the chest of tea to be restored to the appellants, Orene^s parties, and
condemned the respondent in costs, so far as related to the proceedings in the
appeal depending in the High Court of Admiralty of England, but gave no
costs upon the present appeal, and referred the taxation of such costs to the
Registrar." See Delegates' Assignation Book.]
1771 RIGHT OF COMMAND.
Tnl T^ut, ADAMS AND OTHERS V. CROUCH.
Stevens. Jenner.
Drs. Harris and Wynne. Dr. Calvert.
Query, — Whether the master should not be restrained by the Court from
proceeding to sea ; and whether he should not be compelled to deliver possession
of the ship to Captain Thomas Jenkin, appointed master by the majority of the
part-owners ?
Dr. Harris. — 1 S. Trin. T. 1771. Stevens returned the warrant
of the ship Mary and Anne. Jenner appeared for Jn. Crouch ;
alleged him master and part owner of the said ship, and prayed
the Judge would assign Stevens to Libel, with sureties to prose-
cute by 3rd Session. Stevens^ dissenting, alledged the cause is
not of that nature to require a Libel, but is of a summary nature ;
that Jn. Crouch is not the real master, and is cited to shew cause
why he should not be restrained from proceeding to sea and .con-
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HIGH COUBT OF ADMIRALTY. Ill
yeying the Mary and Arms out of the Thames, and why he should 1771
not be compeUed to deliver possession to Captain T. Jenkins, adamb
appointed master by the major part of the owners, viz., of ten- q^^,
sixteenths.
Stevens alledged that, to lead said warrant, an affidavit was left
in the Registry, sworn by James Adams, viz. : That about Feb-
ruary, 1769, he was appointed husband of the ship, and soou after
purchased one-sixteenth, and has ever since been ship's husband ;
during which the owners have been considerable losers, particu-
larly the two last voyages to Barbadoes, 1769 and 1770. That in
September or October last John Crouch as master desired Depo-
nent, as husband, to order said ship to be docked and fitted for
Barbadoes. Deponent refused, and ordered Crouch not to direct
it ; notwithstanding which. Crouch directed her to be docked and
fitted for sea, and put her up for freight at New Lloyd's Coffee
House. Thereupon divers meetings were had of the owners, or
the major part, who resolved not to permit Crouch to go to sea on
any further voyage, but to divest hira of the command, and to sell
said ship, and to use all possible means to obtain possession and
appoint another commander. That Adams applied to Crouch, who
refused to deliver the ship, and said he would sail out of the
Thames as soon as possible.
8th December last, Adams and Thomas Harris, another part
owner, went on board to give Jenkins possession, he being ap-
pointed commander by a majority of the part owners. Adams
then offered to pay Crouch any wages and demands he, the mate,
or any of the crew, had on account of the ship, and demanded
possession, producing his authority from the major part of the
owners for so doing. Crouch snatched at the authority and Grand
BiU of the said ship, and declared he would not quit possession.
Deponent thereupon, in January, 1771, filed a Bill in Chancery in
the names of the major part of the owners against Crouch and
others, praying he might be restrained from proceeding to sea
with the said ship and compelled to deUver possession thereof,
and that the ship might be sold by auction. On filing said Bill,
Plaintiffs moved for an injunction to stay Crouch from proceeding
to sea ; the Court ordered it till answer was given in and farther
order. Crouch put in two answers. In the second he admitted
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112 HXGH COUBT OP ADMIBALTY.
1771 the Plaintifis were the major part of the owners in number and
Adams value, and thereupon, 22nd April, got the usual order for dis-
Cbouch. solving the injunction. 2nd May the Lord Chancellor Apsley,
on hearing, dissolved the injunction, declaring the Court of
Admiralty had the only cognizance of the matter, so would not
interpose, and Plaintiffs must apply to the Admiralty Court, who
in a summary way might divest Crouch of the command.
Stevens alledged his clients the major part owners in number
and value, viz., ten-sixteenths ; that such majority have a power
by law of nominating a master and removing him at pleasure ;
also the sole power of directing the voyage and fitting her out ;
and that the master is bound to obey their orders, being only
a servant, and though a part owner would have no other right to
the nomination or removal of the master, or to the direction and
destination of the ship, than in proportion to his share. That
Adams having made and left such a£Sdavit in the Registry, and
the said warrant being duly executed and returned. Crouch or
any other who pretends an interest in the premises, so as to
obstruct the warrant, must shew cause by a£Sdavit why he should
not be restrained by order of this Court from proceeding to sea,
and compelled to deliver possession of the ship, with the register,
books, and papers belonging to her, to Captain T. Jenkins ; and
prayed Jennet'B prayer to be rejected, and he [qy. be] assigned a
short term to shew such cause, and in the interim the Marshal
may be ordered to put her into some wet dock to remain till
farther order. Jetmer denying Stevens' allegations to be true, and
exhibiting Crouch's attestation to prove him owner of one-six-
teenth ; that Stevens admits him lawfully ftppointed master by
all the owners, that, being in lawfull possession, he should not be
compelled to resign the command without a like revocation and
new appointment. Jehner cJledged he, Crouch, has expended
divers sums, and subjected himself to many demands on account
of fitting, victualling, and manning said ship, and therefore, if he
had no property, could not be removed as master till his demands
were paid. As part owner he protested against Jenkins' appoint*
ment, and alledges, in case any part owner is dissatisfied with his
profits, he ought to sell his share, that Crouch is ready to render
account of his demands, when ordered by any Court that will
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HIGH COURT OF ADMTBALTY. 113
enter into and adjust the account and compel him to be reim- 1771
bursed, so prayed Stevens^ prayer to be rejected and the action to adams
be discharged with costs. ^^^^
Stevens denied he had ever admitted Crouch lawfully appointed
master by all the owners, admits he acted as master several voyages,
having been appointed by Eichard Gosling, then husband and
part owner, since deceased ; denies Crouch has expended divers
sums or subjected himself to many demands on account of fitting,
victualling, and manning said ship ; cdledged his clients ready to
pay all just demands to Crouch on the balance of his account
whilst master, and until forbid by a majority of the owners to lay
out any money on account of the same, and are ready to give bail
or deposit any sum to answer all lawfull and just demands, and
80 prayed the effect of his warrant, and that Jenner, not having
shewed a sufficient cause to the contrary, the possession may be
declared to T. Jenkins, as master, or to James Adams, as husband,
with her register, books, and papers.
Jenner prayed Stevens' Petition to be rejected, and that Crouch
might not be compelled to quit possession of his property in the
ship, and the command thereof, and that the action may be dis-
charged with costs, and Stevens assigned to libel with sureties, as
usuaL The reason assigned by Crouch why he should not deliver
up the ship is that there is something owing to him, and that he
was appointed by all the owners, so can't be displaced by a
majority. Now I conceive a majority of owners may do all acts.
It is so laid down in MoUoy, page 221, who says also the master
is eligible by the part owners in proportion, not by the majority.
This man has got possession, and will not be ousted. If you
order a Libel to be given, as they pray, it would be to no purpose
for us to proceed, because the captain might make another losing
voyage, and have nothing to contend for. Sir LeoUne Jenkins
lays it down as a rule, that the Court of Admiralty has jurisdic-
tion in all complaints against the captain. Lord Baymond does
the same. There have been two loseing voyages; the captain
may make a third. He has had the ship docked without cx)nsent
of the owners, and against their express order. As part owner.
Crouch will have his share if the ship goes out under Captain
Jenkins' command. We offer him security for it.
I
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lU HIGH COURT OF ADMIRALTY.
1771 Dr. Wynne. — It is necessary for the Court to consider how this
ADAm cause came here. An injunction had been granted in the CJourt
C *(:cii ^^ Chancery to stay the ship till further order. Afterwards the
Lord Chancellor dissolved that injunction on hearing, and dis-
missed the cause for want of jurisdiction, declaring the Court of
Admiralty was the proper Court to proceed in, who had a sum-
mary power of deciding. Crouch has made two points ; he says
he was appointed master by all the owners, and must be dismissed
by all ; and that he is a part owner, so can't be deprived of his
property. You will consider him in no other light than as
master, in which his ownership will not aid him. He became
owner in November last, subsequent to the time when the appli-
cation was made to the Court of Chancery to turn him out;
whence it is plain he obtained it with a collusive view. The
master is only a servant of the owners, appointed by them for a
particular voyage, during which they are bound by his acts. On
his return that power ceases, and no act of his binds the owners
aftor the voyage is determined, who may dismiss him at any time.
There must be a direct or implied appointment of him for each
voyage ; the disapprobation of one owner is sufficient to dismiss
the master, merely considered as master. He has a right to
wages only whilst in service, and may be equally dismissed as
another servant. He was appointed master by Grosling, the ship
husband (since deceased). By the same authority he is dis-
missed. It is not necessary to have the absolute appointment of
all the owners ; that of the husband is sufficient, which makes
him master for the voyage, but not a minute longer. Here a
majority of the part owners nominate. In this particular the
practice is analogus to that of the Prerogative Court, when in
the grant of an Administration the majority of interest is always
preferred. This Court, having jurisdiction, will not suffer one
obstinate man to stand out [and] obstruct a voyage, and oust a
captain appointed by the majority of owners; but at the same
time, to prevent any inconvenience arising to such dissenting
owner, the Court will oblige the majority to give him security
for his share, to pay him for it, or to restore it on the safe return
of the ship. So, on the other hand, one perverse owner shall
not say, I will fit out this ship against the will of all the rest.
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HIGH OOUKT OP ADMIKALTY. 115
As to the mode of determining the Libel and examination of I77i
witnesses, in this case it wonld be as preposterous as to oblige a Adams
man to bring an action against his servant before he could turn gbouoh.
him away. These owners offer to pay the man' his share, and it
is unreasonable he should have a right of going as many voyages
as he pleased, and load his owners with great charges. If such a
doctrine holds, it would be very dangerous for merchants to have
any concern with ships.
Dr. Calvert. — It is a very extraordinary application to the Court,
to order a man appointed master by all the owners to be dispos-
sessed of his command in this summary way, and also of his
property in the ship, of which he is a part owner.
We are not properly before the Court on the merits. In the
action it is called a cause civil and maritime. There can be no
cause without issue joined and a libel. All Admiralty causes are
summary, yet they are proceeded in regularly. Seamen's wages
are summary causes ; yet a Summary Petition is given in, which
is equivalent to a libel. The gentlemen say there must be an
accusation. If the owners could have turned him out without
coming here, why did they not? They are then improperly
here? If it requires the formality of a Court to turn him
out, they must proceed according to the rules of the Court.
The majority give security to the minority for their share. But
that is no cause ; they determine it themselves. This Court has
taken stipulations, and it has [been] matter of dispute whether
the Court of Admiralty is not liable to a Prohibition for so doing.
The question has not received a judicial determination, though in
the later cases they have been ordered to declare in Prohibition.
It is said we are regularly before the Court ; that they pro-
ceeded by aflSdavits, which we have answered in the same manner.
We have merely to deny their facts, and not with a view of going
into the merits, unless a libel is first given. All their [argument]
as to the appointment of the master by the majority of the owners
is inapplicable. There is no doubt they may turn him out on
cause shewn, but not ad libitvm. Who would undertake the
command, and keep long accounts, and lay out his money, if he
was considered as a common servant and liable to be dismissed at
a minute's notice ? Such a doctrine would be highly detrimental
1 2
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116 HIGH COUBT OP ADMIRALTY.
1771 to trade. By the Eauseatique Laws^ Art. 14, " The owner having
Adams lawfull cause may turn off a master, paying him for what share
CKauLii ^^ ^^ ^ ^^® ^^P ^^ ^^^ price it cost him." It is not allowable
to dismiss him on mere caprice. Here they want to tnm him off
without any cause assigned. We pray to be dismissed, if they
do not give a libeL It is a question whether you can proceed for
want of jurisdiction ; whether this is within your limits. There
are Acts of Parliament which restrain the jurisdiction of this
Court ; viz., 15 Bich. 2, c. 3, declares, ** That of all manner of
contracts, pleas, and quarrels, and of all things done within the
bodies of counties, as well by land as by water, the Admiral's
Court shall have no manner of cognizance, power, nor jurisdiction."
The question is, whether the ship shaU go out of the Biver
Thames, which is within the bodies of counties. 2 Hen. 4, c. 11.
The Admiral or his Lieutenant acting contrary to 13 Bic. 2, st. 1,
c. 5, the Common Law is holden against them ; and the owners
should consider that the same statute gives the party injured ^'an
action for double damages against the Pursuant, on whom there
falls likewise a fine of £10 to the King."
This cause is not usually proceeded in here. No instance has
been produced by the gentlemen. Many experienced Proctors
have refused such sutes, because they thought them out of the
jurisdiction of this Court.
Qy. When.? A caso of this sort [was] brought before Lord Hardwick, when
rougI"e ^' C. J. B. B., wherein a Prohibition was moved and granted,
liLiKiris. 2)r. Harris. — I was surprised to hear the jurisdiction objected
to, after the solemn manner in which the Court of Chancery re-
commended it to be brought here. I do not say there is an
accusation against the Captain in point of behavior. We come
before the Court to have an answer to a plain question : Whether
the owners can't turn away a servant without assigning a reason ?
It is indisputable they may. The quotation of the Rauseatique
Laws don't prove the contrary. Owners may do what they please
with their own property. Suits for mariners' wages are seemingly
as much against the Statutes of Bic. 3 and Hen. 4 as this suit,
yet always brought in this Court. Witness the cases oi Lambert v.
Aeretree, Lord Baymond [vol. i.], 223; Qrcyve v. Hedges^ Holt,
1286 [qy. 470, 471] ; Dimmoch & Cluindler [1], Str. 890. The
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HIGH COUKT OP ADMIRALTY. 117
Captain has now an opportunity of offering all the reasons he I77i
conld on his plea. adams
Dr. Wynne. — ^The word ** cause " is relied on by Dr. Calvert. I cbouch.
deny it to be a cause. It is improperly used in the Act. It is
neither criming nor civil. We do not accuse him of doing
wrong, and desire him to be punished, nor to divest him of his
property. Surely Dr. Calvert don't mean that the Captain has
a property in the ship which he can maintain an action for ? The
quotation from the Hauseatique Laws must apply to the middle
of a voyage, viz., that without cause assigned the Captain can't
be divested of his command after the adventure is on board. As
owner, we do not desire to divest him of his property, but we say
he shall not fit out the vessel again, and we offer to buy his share.
We come here because we are averse to break the peace. We
apply to the proper magistrate. Had we attempted to take pos-
session it might be attended with mischief, 6ts he retains it manu
farti^ and attempted to snatch the order out of Mr. Adams' hand.
Any demands he may have for a former voyage must be ascertained
in a proper Court. He can have no right to retain the command,
as if the ship was hypothecated to him for the demand.
Sir Thomas Salialury, Judge. — The owners seem to have acted
with great tenderness to the captain, who keeps possession by
force, rudely attempts to snatch the order from Adams, and ad-
vertises the ship for freight. The majority of the owners have
undoubtedly aright to remove him. Gosling, the former husband,
appointed him ; the present husband removes him. They don't
wish to deprive him of his part as owner. I think the ship must
not go to sea. The captain must resign it to the owners or hus-
band ; and I decree an order to the Marshall to deliver the ship
accordingly, and a monition against Crouch to deliver up the
Register.
N.B. — Stevens prayed an order for the Marshall to move the
ship into a wet dock and let her be unrigged. Jenner alledged
Stevens had no right to make any prayer, as he had protested of
appealing, and had undertaken to prosecute it by the Bye Day.
Stevens said Jenner had not appealed, but only protested of appeal.
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m
HIGH COURT OP ADMIRALTY.
1771
Adaus
p.
Crocch.
and asked if he did actually appeal. Jenner declared he did,
and deposited £6 for the stamps.
Dimmock v. Chandler [1 Eaym. 223], suit may be brought in
the Admiralty by one part owner against another who is going to
sea, to give security for the ship. No prohibition.
Grove v. Hedges [Holt, 470, 471], suit by one part owner
against another, who would go to sea with the ship, to oblige him
to give security.
Per Cvriam. If security was offered and refused, they would
grant Prohibition, but not before. 1 Raymond, 235 [Blaeket v.
Ansley'].
1771
Tnn, Tertn.
LIABILITY OP BAIL.
JAMISON & CO. V. MERRY (1).
OosUng.
Drs. Collier and Wynne.
Goodmn.
Drs. Harris and Calvert.
Br. Collier. — This cause is described, Netly Jamison & Co. v. The
Lord Anson, Robert Wolcombe, master, and the wares, &c., laden
Q, Wbethet a
piirty who is
hm\ io an
iifttion.ftnd therein ; and also as^ainst Anthony Merry, Esq., owner and pro-
brmkrapt, And prietor of the ship intervening for his interest.
receives liia ^ * *^
c<?rtiticatc,ciin The case was as follows : —
17th September, 1763, Messrs. Jamison & Co., Virginia mer-
chants, caused an action in £2000 to be entered, to arrest the
Lord Anson in a cause of bottomry civil and maritime.
5thL of October, 1763, Mr. Merry gave bail to the action.
Messrs. Jamison & Co. gave a libel of eight articles, stating
that the Lord Anson, of 600 tons burthen, in 1761, or 1762, pro-
ceeded on a voyage from London to Quebeck, thence to Virginia,
and returned to the Port of London, during which voyage Wol-
coiiibe had the command. That whilst in . . . River, Virginia,
boing in want of necessaries, and Merry and Wolcombe having
no friends there, Messrs. Jamison & Co. lent Woolcombe £1000,
who expended it in the repedrs of the ship.
[(1) See above, p. 1, for other proceedings in this case.]
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HIGH COUBT OP ADMIEALTY. 119
That, 2 July, Woolcomb, the master/ to secure repayment of 1774
the £1000 so lent, on behalf of himself and owners executed an Jamibon
hypothecation or bottomry bond. *^*
15th August, 1763, the ship arrived at her moorings in the Mbrby.
Port of London, and made £1000 freight. That they have re-
ceived no part of the £1000, or Bills of Exchange, and have applied
to Mr. Merry, who refuses payment
In answei to this libel, Hilary Term, 1769, Mr. Merry gave an
allegation stating that the ship was destined on a voyage to
Quebec, thence to Newfoundland, and thence tothe Mediterranean,
and so to London. That the French, having taken St. John's,
were dispossessed by the English. That Wolcomb, instead of
going to St. John's, went to Virginia, and to cover his deviation,
alledged information of its being in the hands of the French.
There he got acquainted with Jamison, and lived at large, with-
out regarding the ship, borrowed £1000, and laid out only £30 in
repairs, entering into partnership and employing part of said
£1000 in another trade. After the institution of this cause, Mr.
Merry became a bankrupt. The cause went on. I thought him
incapable of standing in judgment, and advised him to make
an affidavit of his being a bankrupt, and having his certificate,
and so to pray his dismission. If the owners are amenable, the
action must be brought against one who has a persona standi in
jucUcio. The bail also desire their recognizances may be dis-
charged.
Dr. Harris. — I would beg the Court to pay attention to the
dates of facts notoriously done by Merry subsequently to the time
he obtained his certificate. February, 1768, Mr. Merry had his
certificate. 2 S. Trin. T., he asserted he gave his allegation. 2 S.
HiL T., 1769, his allegation was admitted. 4 S. E. T., 1770,
Gosling prayed a commission to pass the seal for examination
of witnesses, but never took it out. 3 S. . . . 1771, Gosling
asserted he gave an allegation, yet has given none.
Dr. Collier. — I admit all the facts stated by Dr. Harris, and I
say it is a known rule that every bankrupt is a dead man in law.
Every thing belonging to him becomes the property of the
assignees. He can have neither executor nor administrator, and
can do no act in respect to civil property. It must, therefore, be
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120
HIGH COUBT OF ADMIRALTY.
1774
Jamison
&Co.
V.
Mebbt.
absurd to bring an action against a person of this description.
" If he had not given up this to the assignees, he would be liable
to the penalties of the statute for concealing his effects. Here is
£1000 to be sayedy if he can gain it. He has property undis-
covered. If the money can't be recovered against him it is
ridiculous to proceed in the action. If the bankrupt can't receive,
he can't pay; his assignees stand in his place. 5 Geo. 2, c. 30, s. 7 :
^^ Every bankrupt who shall surrender to the acting commis-
sioners within the time limited, and in all things conform as by
this Act is directed, shall be discharged from all debts by him
due or owing at the time he became a bankrupt ; and in case he
shall be afterwards arrested, prosecuted, or impleaded, for any debt
due before such time as he became a bankrupt, he shall be dis-
charged on common bail, and may plead in general that the cause
of action accrued before he became bankrupt, and may give this
Act and the special matter in evidence. The certificate of such
bankrupt conforming and the allowance thereof according to the
directions of this Act shall be sufficient evidence of the bank-
ruptcy, &c., and a verdict shall thereupon pass for the defendant,
unless plaintiff can prove such certificate unfairly obtained, or
any concealment by such bankrupt to the value of £10."
Does not Merry plead the bankruptcy in bar to the action ? It
is said we have done several acts subsequent to the certificate.
Be it so; that will not preclude us from offering peremptory
exceptions at any period of the cause. If you discharge Mr.
Merry, the next question will be in respect to his bail — whether
they can be held ? It may be said the action is against the ship,
not against Mr. Merry. He appears for the ship ; the bail for
him. He has been in judgment as long as he is capable. If he
had died the bail would have been discharged. The same reason
holds in a political as in a natural death.
. Dr. Wynne. — The libel was against the ship Lord Anson, and
Anthony Merry intervening for his interest, and that you would
condemn him in costs. Though he was not originally arrested, he
is the only party against whom judgment is now prayed. If the
debt claimed is due it is a personal debt from Merry, who must
alone be liable. But all his effects are vested in assignees, and
he hag no ^persona standi in Jtidicio, unless his giving a plea sub-
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HIGH COURT OF ADMIRALTY.
121
sequent to the time his certificate was granted will deprive him of
that advantage. A bankruptcy is a notorious act, advertised in '
the Oazeitey to inform all the world. It was then their fault to
proceed against a person who is not liable. They accept his acts.
They were, perhaps, no more aware of it than Mr. Merry, yet that
will not alter the case. He has made a cessio honorum under the
Statute of Bankruptcy, which is a clear legal way of getting rid
of the debt, as if he had legally paid the money. The obligation
must be transferred from the person to the effects, and it not
being his debt, the bail must be discharged. They can't be
liable for what the principal is not responsible. It may be hard
for Mr. Jamison to have lapsed the term of claiming as a creditor,
viz., four months. But I hope you will think the petition very
proper, that Mr. Merry and his sureties may be dismissed.
Dr. Harris. — The question is, whether Merry or his sureties may
be held. It is said he is politically dead. I allow, when the
certificate is given, a man is cleared from every debt previous,
but not all in futuro. He would here be benefited ; he might
receive costs if he prevailed. There are two kinds of sureties,
for the person, and for the thing. Here they are consolidated.
They are bail that he shall appear and pay. If Merry was dead,
the bail must pay. He has bound himself by what he has done
subsequent to the certificate. If we should obtain [a decree ?],
no doubt the other owners would be liable pro rata.
Dr. Calvert. — The gentlemen mistake the principles. It is
impossible to suppose that [when] a man has honafide lent the
money the bail shall be discharged by the bankruptcy of one of
the owners ; for at that rate the ship would never be admitted to
bail, because no one would quit that permanent security, but
detain it till the end of the suit. The ship could not commit
bankruptcy. If you accepted this, you would contradict the
practice and law of the ship being liable. Therefore we can't be
bound down to the security of a single man. The ship and
freight are the principals. Merry is a mere intervener. In
personal actions this law will hold, but this is no personal action.
For appearance, bail is at an end when the pwty bailed appears.
Afterwards there is another bail given expends et jttdicato sol-
vendis. By this they render themselves liable. See Clerk, De
1774
Jamison
&Co.
V,
Mebby.
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122 HIGH COUBT OF ADMIBALTY.
1774 jvdicato et expensis scHvendis, Tit. . . . and Tit .... contra fiAe-
Jamison jtfssorem. The sureties wonld be held, though Merry should die.
*^' A bankruptcy don't extinguish the debt, though it alters the
Merby. mode of recovery. If Jamison can prove his debt he may be
impsone. ^^^^1-1^^ |^ claim as a creditor of the assignees. The ship itself
is a principal in the cause.
Sir Thomas Salisbury, Judge, was of opinion, as a bankrupt,
Mr. Merry had no persona standi in jvdicio, and therefore ought
Appealed. to be dismissed.
[The Appeal in this case was heard on the 9th of July, 1778, by the Delegates
Oould and Ashhurst, JJ., and Drs. Ducard and Macham, when the following
decree was made (1) :
Crtckett prayed the Judges to condemn Gostling's party in the sum of £1000,
being the amount of the Bottomree Bond, with lawful interest for the same till
the time of payment, and to condemn his said i)arty in costs as well in the first
as second instance. QosUingy Jtmior, prayed the Judges to pronounce against
the force and validity of the pretended Bottomree Bond pleaded and exhibited
in this cause on the part of Crickett's clients, and to dismiss Oostling^ Junior's
client and his surviving surety from this suit and from all further observance of
justice. Fountain prayed Ambrose Lyon, his party, the said surviving surety,
to be dismissed from this cause. The Judges, having heard the proofs read and
having heard counsel thereon and maturely considered the matter, by their
Interlocutory Decree, having the force of a definitive sentence, in writing, at the
petition of Cricketty pronounced the Bottomree Bond to be due to Crickett^s
client as libellate, with interest for the same at the rate of £4 per cent, to the
time of payment, except interest as to the sum of £74 on which Jameson & Go.
ought not to have interest, the same not having been actually advanced ; and
they also condemned the said Oostling^s client in the costs of this suit, as well
in the first as second instance, and assigned to hear on taxation thereof before the
Con-Delegates at Doctors' Commons on the Bye Day after the present term ;
and at the request of the Proctor of the said Jameson & Co., alleging that they
the said Jameson & Co. are now resident abroad, decreed the said principal,
money, interest, and costs to be paid into the hands of the said Crickett's, their
Proctor, and Mr. Charlton Palmer, their attorney, for their use.]
[(1) Extracted from the Delegates* Assignation Book in the Admiralty
Registry.]
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HIGH COTJET OP ADMIRALTT. 123
DR. HAY'S CHARGE TO THE GRAND JURY, 1774
10th November, 1773. Jf???''
October, 1773. Sir Thomas Salisbury dyeing at Bath, Dr.
George Hay was (1) appointed his successor, and being sworn in
before the Lords of the Admiralty on Tuesday, November 2nd,
presided at the Admiralty Sessions held at the Old Bailey, Wed-
nesday, the 10th of November following, when he delivered his
charge to the Grand Jury : —
Gentlemen,
Before you enter upon the important business with which
you are charged I will beg your indulgence for a few minutes in
stating very briefly what I conceive to be the duty of your office.
It will be unnecessary to enter into any discussion of the Ad-
miralty jurisdiction, which is now fully settled and clearly
understood. Before the 27 Henry 8 all maritime offences were
triable by the Lord High Admiral according to the course of the
Civil Law. That Statute points out inconveniences to have
arisen from that mode of tryal, and gives directions for the tryal
to be according to the Common Law, and by a jury. The com-
mission empowers you, gentlemen, to take cognizances, not only
of the offences committed on the sea, which if done at land
would be punishable by the common law, but also of those mis-
demeanours which are cognizable by the law of the Admiralty.
For murder there are no accessories; all are principals and
equally guilty.
You, gentlemen, stand between the Prosecution and the Prisoner.
The trust reposed is great and important. You will therefore
examine the witnesses with caution. The tenderness and humanity
of the Law is such that no one is to be brought to trial till the
Giand Jury have said that in their judgment there is a foundation
to put him on his tryal. If the evidence does not induce a pro-
bability that the prisoner is guilty, you will find it no true Bill.
Ton are to inquire whether the crime charged was committed on
the high seas, so as to found the jurisdiction of the Admiralty.
Having so done, there is no difficulty of executing the trust
reposed in you.
[(1) On the 6th of Nov. 1773.]
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124 HIGH CX)URT OF ADMIKALTY.
1774 No. 27.
Igt 8€8$. BOTTOMKEE.
Hil. Term.
MACKENZIE & CO. v. The St. ANDREW akd v. OGILVY,
Iktebvening for his Interest (1).
Bargrave. Gosling.
Drs. Collyer and Calvert Dr. Wywne.
Q. Whether a Br. CoUyer. — This is a case of Bottomry brought by Messrs.
tenor hot- Mackenzie & Co., against the ship St. Andrew, Charles Erskine,
Bhall^ave^the Blaster, for £485 advanced for the necessary repairs of the ship,
preference in rphe St. Andrew was built at Leith, 1766, between which time and
payment ? ' '
1772 she made seven voyages from Leith to Berwick and back to
Leith. In November, 1772, on her return from Carolina to Leith,
she met with bad weather off the Land's End, in which she lost
all her masts, and was otherwise greatly damaged ; but being
taken up at sea was brought into Cowes, in the Isle of Wight,
where the master, Charles Erskine, by directions of the owners,
borrowed £ , of Messrs. Mackenzie & Co., and for security
executed a Bottomry Bond to them. This money was expended
on the repairs and necessaries of the ship. Whilst the vessel was
under repair the cargo, consisting of naval stores, being worth
more at Cowes than at Leith, was sold by order of the owners,
and the produce thereof paid to the master, who expended the
same in supplying the sailors with necessaries and other parti-
culars relative to the ship, which was then ordered to proceed to
London, to be sold for payment of the Bottomree Bond* She
accordingly proceeded for the river Thames, where she arrived at
her moorings 12th April, 1773 ; soon after which the ship was
arrested by common process of this Court
1 S. E. T. 1773. — Bargrave returned the warrant, and no ap-
pearance being given, the first default was granted and the certi-
ficate was continued, and afterwards a 2nd, 3rd, and 4th default
granted ; when Bargrave porrected a primum decretum, and
prayed a commission, appraisement and a perishable monition,
[(1) See infra f p. 134, for further proceedings in this case.]
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HIGH COUBT OP ADMIRALTY. 125
which was granted and returned, with the examination of two 1774
witnesses. Lane and Bryant. Maokbnzib
Gosling then appeared for Alexander Ogilvy, and alleged him ^ *
to be a creditor by Bottomree, and that he had taken out g^ ^^sa^
a warrant to arrest the money arising from the sale of the ship,
and prayed his client might be heard on his claim. The Coort
pronounced the ship to be in a perishable condition, decreed her
to be sold, and the money arising from such sale to be brought
into the Registry, to remain there subject to the further order of
the Court.
B. D. — Bargrave alledged the decree of sale to be returned,
that £645 was brought in, out of which, after deducting the Mar-
shall's Bill, the net produce was £610 2s. 4e2.^ and prayed a decree
of so much as the demand of Messrs. Mackenzie & Co. amounted
to on sufficient security given.
Ooding prayed to be heard on Mr. Ogilvy's prior right on
bottomry, and alledged he had arrested the money, but that the
warrant was not returned till ....
The Judge confirmed the sale and decreed possession to the
purchaser, but rejected B.'s petition to decree payment of Mac-
kenzie's demand on security given ; thinking the best security
was the money being in the Registry. Gosling* s debt for which
he sues was contracted in 1766, whilst the ship was on the stocks,
and no bottomry bond given for the amount till 1768, when it
was given as a pretended security for the debt of 1766, without
specification of any charge made by the ship.
N,B. — In the course of the evidence Br. Wynne offering to
read affidavits taken before Mr. Cleggan, stating himself to be
Bailiff of Leith, and corroborated by the depositions of two
persons as to his being Bailiff of Leith, Br. Calvert objected
to their being read, insisting that the Bailiff of Leith is not com-
petent to take affidavits in the Court of Admiralty, and that
they should have been taken either under the special commis-
sion of this Court, or by persons authorised by the Court of
Admiralty.
Sir George Hay^ said there could be no doubt that evidence
taken in a proper Court abroad is admissible in the Court of Ad-
miralty. The objections stated go to the relevance of the affi-
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St. Akdbbw.
126 HIGH COURT OP ADMIRALTY.
1774 davits^ not to their being read. When, therefore, I have heard
Maokenzh them I shall be able to decide on the objection.
^' Dr. CoUyer. — The jurisdiction of the Court of Admiralty is so
^^^^ extensive that all sorts of evidence properly authenticated may be
received ; but when an affidavit is brought that has not even die
attestation of a notary, nor the authority of any Court to support
it, you will not presume in its favour. Where there may be many
persons of the same name, you will not suppose identity without
the attestation of a notary. If you do, you will open a door
to perjury and forgery.
The account given of the prior claim is very singular. The
money was lent before the ship was built, by the Edinburgh
Eopemaking Company, in order to supply the ship with sails and
rigging, and no security taken for the repayment for two years.
The only reason assigned for this neglect is the confidence they
had in the captain's honesty, which afterwards induced them to
suffer the money to remain uncalled for. It is remarkable that
the ship made seven voyages between Leith and Berwick between
the time of her first outset and 1772, and that the cargoes of two
of these voyages were consigned to the pretended creditors of the
first bond. Is it probable that they would have omitted to deduct
their debt out of the proceeds of the cargos so consigned to them,
if any debt was due ? It is also remarkable that Charles Erskine,
who was commander during the three last voyages, was ignorant
that there was any such lien on the ship, and says no demand was
ever made on him. But if the debt is real, I conceive they cannot
recover till we are satisfied our claim. I conceive the person who
lends the money last has the preference in point of payment,
being considered as the salvor of the ship, without whose loan the
whole would be lost, and consequently the former bonds useless.
They are also culpable for having omitted to take any steps to
recover their property, whilst we have proceeded in the usual
manner to vindicate our claim, and procured the money arising
from the sale of the ship to be brought in ; without which our
interest would have been uncertain.
Dr. Calvert. — For wise reasons we understand the Court of
Admiralty receives evidence which perhaps other Courts will not
allow of. But all evidence should be authenticated. The present
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St. Ajtdbew.
HIGH COUBT OP ADMIRALTY. 127
question is whether the paper now offered, if it stood alone, conld 1774
be pronounced for? The paper offered is stated to have been maokbnzib
taken before a Mr. Cleggan, who is certified by two persons at a * ^^'
subsequent period to be Bailiff of Leith, as mentioned in the ^ ^^^^
affidavit. Is the debt claimed by Ogilvy to be considered as a
debt by Bottomree Bond allowable by the Court of Admiralty, or
a private debt from Mr. Erskine to Mr. Ogilvy ? It is not every
mortgage of a ship that constitutes a Bottomree Bond debt. It
is stated to be a debt contracted by Mr. Erskine in 1766, in his
private capacity, for ropes and sails furnished by Mr. Ogilvy, for
which no Bottomree Bond was then given, nor till two years after,
viz. 1768, when Erskine sold the ship to Ogilvy for the aforesaid
debt It does not therefore relate to anything maritime. It was
not contracted at sea for any necessarys, and has none of the
requisites required by the marine law to constitute a Bottomree
Bond. The nature of it is such that it could not be sued for
here, and shews it a debt contracted on the credit of Mr. Erskine
only.
E contra. Mr. Mackenzie's is strictly of the nature of a Bottomree
Bond. The distress of the ship required it to be hypothecated for
the debt, upon which circumstance alone the right of the master
to pawn his ship, which is the property of others, is founded by
the marine law. Mr. Erskine being a part owner makes no altera-
tion. The distress of the ship is in full evidence. The interest
agreed on was only 2 per cent, on account of the shortness of the
voyage, which was horn Cowes to London, and the principcd was
to be paid 30 days after her arrival. Mr. Ogilvy's priority of
date gives him no preference in point of payment. So far &om
it, that of the later date is preferred, because the former creditor,
by the bad state of the ship, lost so much of his security, and
therefore Ogilvy can stand only in the place of the owners. The
last lender is considered in the nature of a salvor. The subse-
quent accident which had happened to the ship had rendered the
pawn of less value. Every degree of distress depreciates the ship.
If she had sunk, Ogilvy's debt would have been totally lost. For
this reason posteriority of date gives the preference in sea mort-
gages. If it did not, no man would lend a shilling on Bottomree.
A total loss would accrue ; and the end for which the maritime
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128 HIGH COUBT OP ADMIRALTY.
1774 law gives the master the power would be totally defeated.
Mackenzie" Merchants would be distrustfull and urge the possibility of a
&Co. prior hypothecation. But Mr. Ogilvy's latent claim is not
I'he founded on account of its commencing two years before the secu-
rity was given. Mr. O. might several times have been paid, but
forbore receiving it on account of his confidence in the master's
honesty, as he admits ; and that he would not have proceeded
now, if he had not been informed Mr. Mackenzie's bond was put
in suit. It is thence plain Ogilvy relyed on the master, and not
on the ship.
Mr. OgUvy states the ship to be insured at £1000, and that by
the usage of merchants the insurers are bound to pay two-thirds
of the sum insured. By his own state, then, he is not necessitated
to recur to the ship ; the two-thirds aforesaid being sufficient to
pay his demand. We therefore hope you will decree the money
out of Court to pay our Bond, as fSeir as the money will go, and
that Qosling^B Petition may be rejected.
Dr. Wynne. — My client's claim is for £259 11a., with interest
I think there is a nullity in Mackenzie's proceedings founded on
the Bottomree Bond dated 23th March, 1773, the purport of which
is '' that payment should be made 30 days after the ship arrived
at her moorings in the Thames ; if the money should be paid in
that time the bond was to be void, otherwise to remain in forca"
12th April, the ship arrived in the Thames. 22nd April, the
action was entered against the ship. 10th May, the third default
was taken. The entry of the action, therefore, being before the ex-
piration of the 30 days agreed on, consequently before the bond
was due, vitiates all the proceedings prior and subsequent thereto.
Suppose a suit for distribution in administration against the ad-
ministrator before the expiration of the year ; the citation would
be null, and all the proceedings void ; and this objection we have
a right to avail ourselves of in any part of the cause.
I think the affidavits properly taken. The suppositions of the
gentlemen have no foundation in fact. The affidavits are all on
one paper, at the bottom of which the Notarys attest that the
person before whom they were taken is Bailiff of Leith. I never
saw an affidavit under a Seal of Office. Does a Surrogate, or does
the Lord Mayor, use a Seal of Office on such occasions ? If a
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HIGH COURT OF ADMIRALTY. 129
Commission had been sent to Scotland^ I allow it would have 1774
been under seal, but that is a very different case from the uacksszoT
present. *^-
Gosling prays a decree for payment of his client's bond, with ^"
5 per cent, interest, with preference of Mackenzie's Bond. The
validity of my client's Bond must be first considered and esta-
blished, or set aside ; and then the Court will consider the effect
of the other bond of a later date.
Mr. Ogilvy says the 8t. Andrew was built by David Erskine,
who was owner of one-half. That Thomas Erskine owned one-
fourth, and purchased one-eighth, of which Carnegie and another
person was proprietor. Charles Erskine says he knows Ogilvy
furnished the sails and rigging to the amount of £200 and
upwards.
Watson, who is a Proctor in the Admiralty Court of Scotland,
says this Instrument is executed conformable to the law of Scot-
land, and that he has seen Instruments of this nature carried
into execution in their Admiralty Courts.
N.B. Sir Thomas Salisbury having irregularly consolidated
the causes. Gosling proceeded in the usual way ; took the first
default, and prayed the second, to which Bargrave said he appre-
hended the Court could not give judgment till Gosling had taken
his four defaults.
Sir Geo. Hay said that Sir T. Salisbwry had been irregular in
consolidating the causes at Gosling^ s prayer ; but having done so,
the Court could not decide under the defaults taken by Bargrave^
but must defer it till all the parties were in contempt, who must
have a proper time allowed them; for however summary the
proceedings may be, the Court must not suffer an omission, but
stay tiU all the defaults were taken, and therefore adjourned the
further hearing to 4th Sep. of this term, to enable Gosling to take
his four defaults."
[See infra, p. 134, for further proceedings in this case.]
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130 HIGH COUBT OF ADMIRALTY.
ITTI DAMAGE.
JiJ!*^ JOHN FAIRLESS, Owner of the "GOOD INTENT "t;.
THORSEN, Owner and Master op the "PRINCE
CHRISTIAN."
Farrant, TotmUey,
Br, Harris, Dr. Calvert,
Q. Is tbe Br, Calvert, — This is a suit of damage brought by Faiiless,
«ibie, and hsa ^wiier of the ship Oood Intent, against Sywert Thorsen, owner and
the D^urt master of the Prince Christian, and the Question was as to the
th^ dam&g© admissibility of the Libel for want of jurisdiction, on account of
Gr&e^wicb the mischief being done in Greenwich Reach, near the Isle of
Rt^och? Dogs, which Br. Calvert contended to be improper for the cogni-
zance of the Court of Admiralty, and cited 15 R. 2, c. 3, which
declares that " all manner of contracts, pleas, and quarrels, and
all other things done rising within the bodies of counties, as well
by land as by water, and also wreck of the sea, the Admiral's
Court shall have no jurisdiction, but they shall be tried, deter-
mined, discussed, and remedied by the laws of the land, and not
before or by the Admiral nor his Lieutenant in any wise." Now
if it shall appear that the Isle of Dogs is within the body of any
4 Coke inat. oounty, you will not suffer the sute to proceed. In Lord Lide's
Abr 531^^^^* ^^^'^ ^* ^® ^^^^ down that the Thames is not within the jurisdic-
tion of the Admiralty, but in the body of the county.
Br. Harris. — Mr. Fairless having made his option to proceed
in the Court of Admiralty, wl^en called upon by my client to
declare in what Court he would proceed, I did not expect to hear
an objection made at this time to the admissibility of the Libel
for want of jurisdiction. I remember in a case brought before
Sir Thomas Salisbury in 1763—4, Twyneham v. \Harman\ the
damage was said to have happened at Stone Stairs near London
Bridge by running down the Tartar (1). Objection was taken to
the jurisdiction, but overruled, and the Plea received. Another
(1) A rule nisi for a prohibition was proceeded with ; see Assignation Book,
granted in this case, and it was not 8th July, 1762.
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HIGH COUBT OF ADMTKATiTY. 131
Plea was then offered against the jurisdiction, stating 15 B. 2, 1774
which was rejected. I have looked into the Judge's Patent, and j^
find foil jurisdiction given within the ebb and flow of the Sea. thomkn
We have likewise a Statute on our side, viz. : 15 Eic. 2, c. 3,
8. 3 : '^ Nevertheless of the death of a man, of maihem done in
great ships being and hovering in the main stream of great rivers
nigh to the sea, and in none other places of the same rivers, the
Admiral shall have coffnizance." By the 4th Art. of the Order Bxton's Man-
of Privy Council of 18th Feb. 1683, " The Admiral may enquire logy p. 404.
of and redress all annoyances and obstructions in all navigable
rivers beneath the first bridges, and also try personal contracts
and injuries there which concern navigation upon the sea, and no
prohibition is to be granted in such cases." Fairless began in
the temporal Courts and was advised he could have no relief
there. If Prohibition was prayed, the Courts of Common Law
would not grant one when they knew they could not give re-
dress. The temporal Courts cannot arrest a ship in a cause of
damage, nor hold the master to bail. They only proceed by
writ, which a foreigner would pay little regard to.
Ckyurt (1). — The point in debate is the admissibility of the
Libel. It is agreed to be a suit for damage done by the ship
when under sail near the Isle of Dogs. I have, therefore, no
doubt fibout the jurisdiction of this Court ; but if I had, I should
certainly admit the Plea, as that does not decide as to the juris-
diction, which may be questioned afterwards. The question is
between an English and a foreign ship. It is held by all writers
that no other Court than the Admiralty Court has power to arrest
the ship. However, it might be a case of murther between Eng-
lish subjects. There is no doubt about the jurisdiction, and I
believe many instances might be produced of actions brought
before ships came to their moorings, and therefore I shall admit
the Libel.
[On the 6th of June, 1774, Towvdey tendered £9 2s, lid. for the damages
claimed ; on the 11th of June, 1774, Bishop for Farrani accepted the sum
tendered.]
[(1) Sir George Hay.]
K 2
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132 HIGH COURT OF ADMIRALTY.
WAGES.
1774 LONG, Maeineb of the "CHARLES SHARP v. JAMES
2nd Sess. BELSON, MASTER.
HiL Term, j^^j^^ Torriano.
On Torriano's
Petiti^^d Major alledges that by the Statute 2 Geo. 2, c. 36, s. 7, the
Petm^n!^* master is bound to pay the seamen and mariners their wages, if
Q. Whether demanded, in 30 days after the said ships or vessels being en-
*^ kTk' ^"^* tered in the Custom House, except in a case where a covenant
within thirty shall be entered into to the contrary, or at the time when the
aiSpi^ entered ^^^ seamen and mariners shall be discharged, which shall first
Ho^^^"* happen, deducting out of such wages the penalties and forfeitures
2 Geo. 2, 0. 36, by this Act imposed, under the penalty of paying to each seaman
or mariner that shall be unpaid contrary to the intent and mean-
ing of this Act 208, over and above the wages that shall be due
to each person, to be recovered by the same means and methods
as the wages may be recovered." That the ship did not arrive
till 22nd September, and was entered at tie Custom House, 25th
September; that Long deserted before the ship came to her
mooring, or any part of the cargo was unladen, and in six days
after caused the ship and the master to be arrested, though he
was bound by contract to remain on board till the ship was un-
laden. To this Torriano dissents, and alledges that the 30 days
are now expired, though they were not when the ship was first
arrested. That the mariner was hired by the run, yet at Nevis
the master compelled him to sign the contract in question. That
Majorca allegations should have been stated in a Plea, and not by
way of Petition ; and that he left the ship safe. Major alledged
that he had offered to discharge Long at Nevis ; but he desired
he would not, and consented to sign the articles.
Cov/rt. — I see many mistakes committed by Torriano, in writing
to matters he need not have contradicted. Major and Slade have
also mistaken. It is not proper to go into a question of right
upon affidavits. The Idea was by way of Protest to the suit
being brought within 30 days after the ship was entered, which
the Act allows to pass before payment of wages. Nothing is more
common than to alledge in a Summary Petition a right to be dis-
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HIGH COURT OF ADMIRALTY. 133
charged and paid. The Summary Petition is to be taken as true. 1774
In this it is stated that the mariner asked whether he should lono
work . . . and on the master answering in the negative, he con- ^^^^
eluded the crew were discharged, and that he had a right to his
wages. If this was suffered, the mariner would always be subject
to groundless, frivolous, vexatious Petitions. Nothing can be
properly read. I pay no regard to what is contained in the Act,
only to the contents of the Summary Petition. The relevancy of
that is alone to be considered. I give Torriano's client £3 6$. 8d.
for costs.
DAMAGE.
HENDEESON v. BEATTT. 1774
K Farrant. H. Stevens. ith Seas.
Dr. Wyrme. Dr. Calvert. ^^ ^"^
The action is brought in a cause of damage. It began in Q. ShaU the
October, 1772. f^^.^f
1773, 3 S. H. T., H. Stevens asserted he gave an allegation ^^^' ""^
which was not brought in till 4 S. E. T. aUowed •
S. K T., Farrani prayed Publication. toex^ine^
28 June, 4 S. Tr. T., Stevens returned a decree for answers, ^^ ''^*^®*^ ^
which Farrant omitted to bring in till 18th November following.
9 December, Stevens took on him his term probatory, but has
examined no witness on his plea.
Farrant now prays the cause may be assigned for sentence.
Stevens opposes that, and prays further time to examine his
witnesses.
Court. — I am sorry to find any delay in a mariner's cause, and
must observe that neither Proctor has used much diligence.
Stevens returned his decree for answers 28th June, 1773, from which
period to 18th November following none were given to Farrant.
I conceive answers in a mariner's cause as necessary as any other
part of the proceedings. Stevens might have called on Farrant
to bring them in, but did not. Till the answers were brought in
Stevens (strictly speaking) was not bound to prove, nor to take
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134 HIGH COURT OP ADMIRALTY.
1774 upon him a term probatory. The necessary witnesses were, as
H«ND«B80N~ F(ii^cini asserts, in London, but went to sea, as Stevens says.
Bbattt. ^fore 18th November Stevens might certainly have enquired after
them, but he was not bound so to do, and he aJledged.his ignoiance
of their being in Engknd. When one Proctor complains of the
ignorance of another, he should take care not to be in delay him-
self. In the present case both Proctors are liable to the objection.
UFarrcmt's answer had been brought in before 23rd September, he
would have been entitled to his Prayer, and the Court would not
have given farther time, being averse to delay in marineis'
causes, when the proper steps have been taken. I wish Proctois
would consult the parties as to the time when the witnesses go
away. Stevens prays his term probatory to be continued for two
months, when he expects the witnesses to return. I must grant
his Petition or hear the cause ex parte^ which under the circum-
stances of this case cannot be done. I therefore admit Stevens'
Petition and enlarge his term probatory to 1 S. Tr. T. next
BOTTOMREE.
1774 MACKENZIE v. OGILVIE (1).
laSeti, Qoding,
East. Term, jy^^ Cdlyer and Calvert. Dr. Wynne.
Q. Whether Dr. Wynne. — The claim of my client is for £259 with interest
teHOT bpJ-^*^ at 5 per cent. The prayer of the Opponent that you will decree
^'Su^a^'^^ the money due to Mackenzie, without paying any attention to
the preference the debt due on a prior instrument. There can be no doubt that
Ogilvie's Bond would be valid, if it stood by itself. It is there-
fore worthy your attention to consider how it would be affected
by a debt of a subsequent date. It is agreed that Ogilvie's bond
was given for money actually paid for ropes, sails, &o., to fit the
ship for sea. We prove by a Proctor of the Admiralty Court of
Scotland that this is the regular form of such bonds in Scotland.
The ship is Scottish ; the transaction happened in a Scottish
[(1) See above, p. 124, for other proceedings in this case.]
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V,
OOILTIB.
HIGH COURT OF ADMIRALTY. 135
port If we were driven to insist on the local validity of the 1774
bondy the Court wonld say it was bound to carry a bond in force MAcuBum"
in Scotland into execution here. A sum of money being lent,
and an instrument given to the lender, is equally valid here as in
Scotland. The objection taken is that the bond was not given
in time of necessity. That might be a good argument when a
bond is given by a master, but not when it is hypothecated by
the owner. The reason is because the master has no property,
special or general. He is to navigate, and can lay no lien on the
ship, except where it is necessary to bring her home. We have
an affidavit that an application was made for payment The
party desired time ; therefore this bond was forborn being put in
suit At last Mackenzie took possession of the ship, and forced
Ogilvie to make his demand here. This instrument had a just
and lawfnll commencement. It was bond fide given for money
lent and never repaid. The question is whether Mackenzie's
instrument will make any alteration. Ogilvie's was made in
1766 ; Mackenzie's in 1773. If the former is good, the latter
cannot operate till that is paid off: a second mortgage is not
demandable till the first is paid. But the Doctors would con-
sider it in the nature of salvage, and so give a preference to the
latter in point of payment That is not the law and practice of
this Court ; witness Dunlope v. Fotole (1), about three years ago,
before Sir Thos. Salitbtmfy who pronounced that the former bond
must be first satisfied. Argument of Sir L. Jenkins on an Act of
of Parliament agitated in Car. 2 time, vol. i., p. 80 : Buckhurst,
39 Eliz., arrested a ship for materials. A Prohibition was moved.
Consoltn. (sie) awarded quia prohibitio improvide emcmavit. Boll.
Rep. 48 Eliz. 4 Inst distinction between Pignus and Hypothe-
catio. Under the principles of strict hypothecation bonds, that
given to Mackenzie at Cowes would not be good. To make it
good the master ought to be in great necessity. Another essen-
tial is his being in a foreign country. Molloy, b. 2, c. II, s. 11 :
a master hath no power to take money by bottomry in places
where his owner or owners dwell, unless for so much as his own
part comes to. But when a master is out of the country, and
where he hath no owners, nor any goods of theirs, nor of his own,
[(1) Dunlop V. Proceeds of The Neptune, supra, p. 97.]
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136 HIGH COURT OF ADMIRALTY.
1774 and cannot find means to take up by exchange or otherwise, and
MACKENznT t^t for want of money the voyage might be retarded or over-
OoavuL *tro^^> monies may be taken up on bottomry, and all the owners
shall be liable thereto. BynkershoeJc Qtuest. Jwr. Priv. lib. 3, ch. 16 :
Magister recte hayem obligat in regionibus exteris, non yero in his
regionibus. Batio est ne magister exercitores prsBseutes et forte
invitos obliget.
A Court of Common Law, if appealed to, would grant prohibi-
tion on a bond given by a master in this country. The post goes
from Cowes to London in two days ; to Edinburgh in six days.
An answer from the owners might therefore have been obtained ;
so Erskine had no right to bind the ship. He is, indeed, at the
head of the bond alledged to be an owner ; but he cannot avail
himself of it, as he has styled himself in his affidavit '' now or late
master." The cargo would be best sold at Cowes ; there was no
necessity to have brought it to London. They have laid out
£900 on the ship to be brought to London, and sold at £600.
The owners are prejudiced, instead of being benefitted. How
could this be a fair transaction ? It would not have been so con-
ducted, if those who managed it had consulted the interest of the
owners. The insurers would be obliged to pay two-thirds of the
repairs by the custom of merchants, if the money had been ex-
pended for bringing her in. Were the insurers so unknovrn as
not to be referred to for instructions, whether the ship should be
sold, broke up, or repaired at Cowes, or brought to London. This
is void because the master has acted on his own authority. When
he could give none in an English port, his being in a foreign
Court [qy. port] could alone legalize the act.
Dr. Calvert. — There are various ways to obligate. Bottomry
bonds originated in the law of nature and nations which [enable]
masters to hypothecate their ships. This is contrary to the muni-
cipal laws of all countries. The owners may pawn a ship on the
idea of property. These bonds rest on the risque run. There-
fore what at land would be deemed exorbitant interest would be
sanctified by the risk at sea. If this bond bore 10 per cent, in-
terest it would be illegal because no risque is run. Godolphin,
in his Treatise on the Admiralty Jurisdiction, says " at sea."
The money in the present case was not advanced for any voyage.
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HIGH COUBT OF ADMIKALTY. 137
It was only because the owner, having contracted a debt, mort- 1774
gaged the ship as he might have mortgaged a house. The Bond Maokenzib
cannot be sued in the Court of Admiralty, being a mere personal oottViB.
charge against David Erskine, who gave it. K they rely on the
right of ownership, all the owners must have joined in the bond.
The money was borrowed in 1766. In 1768 he sold out shares.
Two of the owners never heard of any obligation. Ogilvy has as
good a security now as he had in 1766. He can as well proceed
against the obligee .... He had often money in his hands ;
the consignments were made to him. That Proctor is not an
evidence as to the law, but only to the form. There appears no
defect on the face of it. Neither the law of England nor of Scot-
land are concerned in this question, but the law of nations only.
As to its not being given in foreign parts, that might arise from
the master's inability to get it. It is illfounded to say the bond
is absolutely improper, because it was given 'in the dominions of
the same Prince where the ship was fitted out, as it might be
extremely difficult to get at the owners in time.
Sir Geo. Hay, Judge. — There were several irregularities in the
proceedings when this question came formerly before me. This
ship was repaired at Cowes, merely to be sold at London, and was
arrested in the river before the time of payment was come. The
Court thought it right to give time to correct the errors in the
mode of bringing the question on, and taking the defaults. None
of the owners came before the Court, except two of the owners, to
support Mackenzie's claim. The ship was built at Leith in 1766.
In 1768 a bottomry bond was given to Ogilvie, before which the
ship must have made voyages. Ogilvie from his opinion of David
Erskine forbore putting the bond in suit. This ship, being dis-
masted, put into Cowes. Her lading of naval stores was sold
there by the authority of the owners, as is asserted by those owners
who are before the Court. It is thus a transaction had at home
by the owners, and not by the master in that capacity. Hypo-
thecation bonds are to be given only abroad, where no access to
the owners can be had. In such case the lender may resort to
the maritime law to recover payment ; and the posterior bond
will take place, because no person in foreign parts would lend his
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V.
Ogilth.
138 HIGH COURT OF ADMIRALTY.
1774 money to refit a ship if a latent bond of a prior date had a pre-
MAGKSNzn ference in payment. To this there is one exception, namely,
where a master having taken np an insufficient sum, and afte^
wards, in the same port, takes up more ; in this case both bonds
must be taken together. But if in the same voyage the master
takes up money at different ports, the posterior bond is preferred.
The present claimants are not of this kind. Owners may hypothe-
cate a ship before she sails in order to fit her out, but I donbl
whether the lenders may come into an Admiralty Court for
redress. The Chancery Beports say they must resort to a Court
of Equity, but not against the ship, which is amenable here.
When no objection is taken to the jurisdiction, it is my duty to
do all the justice I can. I see no unfiGdmess in either of the trans-
actions. Mackenzie & Co. thought they were lending on the ship.
It was to sell the ship, not to perfect a voyage. The whole trans-
action is between the owners and those claiming under the diffe^
ent bonds. All the owners would be bound. The rule of law
is contrary in hypothecation to that of mortgage ; where there is
no access to the owners ; where the whole is done by the master.
The present transaction was at home, where access might be had,
and actually was had to the owners. Consequently it is not such
a case as faUs within the view of the Court of Admiralty. I must
determine on rules of Equity. It would be unreasonable that
Ogilvie or Mackenzie should have nothing. The parties before
the Court do not object to the Jurisdiction. The produce of the
Sale is in the Begistry. I admit the claim in proportion, so far
as it will satisfy the different claimants. For the residue they
must apply to the owners or insurers. It would be injust to reject
the claim of the first or second bond, because it does not fall
within the reason of maritime bottomry bonds. I decree the
bonds to be paid in proportion to the several amounts, with costs,
out of the money in the Registry.
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HIGH COURT OF ADMIRALTY. 189
WAGES.
SWINNEY V. TINKER, Master. 1774
Farrant. Fuller.
2nd8e9$,
Dr. Wynne. Dr. Harris. ^^ ^«^
This is a cause of Substraction of Wages brought by .... q. Must
Swinney against .... Tinker, master of the vessell the . . . . ^teto^^ouf
The Summary Petition states that the defendant hired the pkin- ?^ *^® ^jld
. "^ ^ into saoKB for
tin in Dec., 1772, to serve on board the said ship as a foremastman the ordinary
by the run from Grainsborough to London and back. The ship bopatd^extra
being laden with a cargo of potatoes, on her arrival in the river ^o'«»chduty?
the master ordered Swinney to shovel the potatoes out of the hold
into sacks, which the plaintiff refased without a compensation ;
to which the Master would not consent, and told Swinney, if he
would not acquiesce, he should have no provisions ; and when
applied to by him for provisions refused to give him any, and
said if he did not go about his business he would throw him over-
board. That the plaintiff, unable to procure provisions on board,
went on shore for that purpose.
A plea was given stating a custom in these voyages for the
mariners to go into the hold and shovel the potatoes into sacks at
the ordinary wages ; the sacks when filled to be removed by
porters. John Hancock says he was hired at Gkiinsborough to
sail to London and return to Gainsborough at four guineas the
voyage ; the lading was potatoes ; made no agreement to deliver
the potatoes; believes Swinny made none; that it is not the
custom to unliver the potatoes, the merchants having persons
whom they employ in that business, unless the sailors agree to do
it on additional wages ; that the same wages as those libelled for
are given by other ships in the same trade, without requiring the
mariners to unliver the cargo. That on the ship's arrival at
London, John Tinker offered Swinney and the rest of the
mariners half a guinea to unliver the cargo, which they refused ;
whereupon Tinker ordered his mate to give them no victuals, who,
accordingly, refused to give them any, which obliged them to go
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140
HIGH COURT OF ADMIRALTY.
1774
BWINNXT
V.
TiNKXB.
Defendants'
witneeses.
ashore to get somey and they afterwards returned on board at
night to do their duty. The next day Tinker told them^ if they
would not unliyer, he would throw their chests overboard ; refused
to pay their wages^ and compelled them to quit the ship.
Bobert Roberts, a mariner on board, says it is not usual to un-
liyer potatoes, unless it is so agreed, and that the usual additional
payment is 6i. per ton. That four guineas are the usual wages.
That Tinker, on the men refusing to unliver, told them they
should deliver them for nothing, or have no victuals.
John Smith, a mariner, says that it is not usual to unliver
potatoes, unless the mariners are paid 6i. per ton, or 2$. per day,
that the crew entered into no ag;reement to unliver the cargo.
Titerton has been seven years owner of a ship, thinks it as cus-
tomary for the mariners to work at unlivering potatoes as at any
other part of their duty ; always so understood at Gainsborough,
and that the voyage is not compleat without it. Within a month
has discharged one of his men for refusing. The wages are
four guineas for the run from Gainsborough to London and back,
and knows it is not customary to make a special agreement. There
are porters to assist, but they do not go under the deck.
Benjamin Hall, shipmaster at Hull, says the potatoes are
generally weighed on deck. The expense falls on the owners of
the ship. It is the mariners' duty to fill the sacks and deliver
them on board the owner's craft, as much as if they had specially
agreed. Has been in the trade upwards of twenty-one years, as
master and mate. Has brought potatoes from Hull, but not im-
mediately from G^dnsborough. Never knew a mariner refuse to
assist in unloading the ship. When mate, has himself worked in
filling the baskets with potatoes. Has known instances where the
owners have sent persons to fill the sacks for their own interest,
lest the mariners should cut them. Never shipped any mariners
at Gainsborough, but believes it not usual for masters there to
make any special agreement. There are meters to weigh and
porters to carry the potatoes on shore.
Homcastle, owner of the cargo articulate, went on board the day
after her arrival ; the meters and porters were with him. The
master ordered the crew to shoot the potatoes into baskets to be
hoisted out of the hold on deck. They in general refused, particu-
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, fflGH COURT OF ADMIRALTY. 141
larly the plaintiff^ and the crew in general gave the master very 1774
abosiye language. The master said he would give them half a Bwinnet
gtiinea if they would work well, and not cut or bruise the potatoes. TufKXB.
They damned him and. said they would not work. He said if
they would not work they should not eat^ but offered them no
money, they having agreed, as it was usual in that trade, to un-
load the ship. The mariners then went on shore, and the master
hired others. Has had many cargoes brought ; never knew it
otherwise than that the crew hoisted the potatoes out of the hold,
to weigh on deck, after which the owners take them away at their
own expense.
Dr. Wynne objected to Charles Edwards' deposition being read,
as he was one of the bail.
Dr. Harris said he had been interrogated, and therefore
adopted.
Sir O. Hay. — The objection arises from the interest of the wit-
ness, which was probably not known when he was introduced. It
speaks for itself that they would not have interrogated him if
they had known he was the bail.
Dr. Harris said there should be an affidavit that they did not
know him to be the bail when they interrogated him.
Dr. Harris. — The question is, whether the sailors are to shovel
the potatoes out of the hold into sacks for the ordinary wages, or
are to be paid extra? Five witnesses say the mariners from
Gainsborough always shovel potatoes. You will find no mention
of any ship's crew who have received money for shovelling
potatoes. One witness, however, endeavours to ascertain a price,
namely 6d. per ton. The mariners are unjustifiable in refusing
to do their duty in this respect, it being their duty.
Dr. Wynne. — This, being a coasting voyage, is not affected by
the statute, which directs a written contract to be entered into
between the master and seamen. A verbal contract is in the
present case equally binding. K the master should afterwards
expect extraordinary duty, to repell the demand contracted for,
it would not be attended to. The benefit to the contracting
parties is the same in verbal as in written contracts ; and strict
proof is required to deprive a man of the benefit of his contract,
because he would not do something more than he agreed for. This
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142 HIGH COUBT OF ADMIBALTY.
1774 doctrine would hold where both parties are equally capable of
BwiNNET understanding the force of the agreement. But that is not the
rpjj^^ case in an agreement between mariners and masters of ships. The
former are very inattentive and ignorant^ and are always con-
sidered by the Court as pupils, and guards them against being
drawn into what is not contained in the contract. The present
case is very unfavourable) because the master has soUicited sub-
scriptions, even from the witnesses he has examined. Here is a
combination to deflEJcate their wages. I contend the master is
not at liberty to introduce parol evidence to establish what is out
of the contract. There was not a word said of this duty when
they were hired. Br. Harris said the mariners are known to be
bound to deliver the whole cargo. This is directly contrary to
their own evidence. For it appears they are not to weigh, or
hoist, or carry the potatoes on shore. Nothing is more common
than for mariners hired by the run to leave the ship as soon as
she is moored. This is the distinction between hiring by the nm
and by the month. It may, perhaps, be true that the owners of
the ships are bound to unload potatoes in this manner. No
witness says it is not usual to give something more for such un-
loading. They only say it is part of the mariners' duty to unlade.
This seems to be a sort of equivocation. Our witnesses swear
positively to a fact pleaded by us, that many ships arrived who
gave four guineas for the voyage, and the men were never asked
to unlade. Their own witnesses admit it to be usual for the men
to have something. Here was an oflfer actually made, which im-
plies an option in the mariners to accept or refuse the service.
Why is not the service expressed at the time of hiring before
witnesses ? The men should be apprised of the duty expected.
If the master, under the general hiring, will insist on more service
than is expressed to be due by custom, the Court will deem it
oppressive. The plan is to defraud these mariners of their wages,
and to take others for the run back. It is difficult for mariners
to withstand a combination or a joint purse. It is said the seamen
were abusive, and used ill language. They, in truth, uttered the
usual language which is generally spoken when people are angry.
But, if that charge is to have weight, the expressions of the master
were much more abusive. The custom is a joke, if auy instance
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HIGH COURT OF ADMIBALTY. 143
can be produced to the contrary. To give it validity it must be 1774
uniyersal. Swinny did all the duty he was bound to do, and that bwinkit
the master would permit him to do, Tioteb.
Dr. Harris. — The captain could not afford to keep men who
would not work. To unload is part of the general duty of the
mariner. Every contract exhibited here affords proof of that.
The contract is taken from the general law, and is written only
to be more plain and perfect. The exception taken to the testi-
mony of the witnesses, who depose in support of the custom, is,
that they are interested and will be benefitted if the Plaintiff
recovers. Why did they not bring fruit meters ? Our witnesses
swear the captain did not offer the half guinea deposed to, and
used no abusive language. If, however, their witnesses are proper
they do not speak fully. They say other ships gave four guineas,
whose mariners did not shovel the potatoes, yet have brought no
witness, who did not shovel, to prove this. We have shewn the
men shovelled under deck. Tenterton says his men did shovel or
were dismissed. Hall says he worked as a mate at it. The mate
of this ship worked likewise, yet he does not appear to have had
extraordinary wages for so doing. I think we have proved our
custom. Refusal of duty on board is a virtual desertion of the
ship, which operates as a forfeiture of wages. It was so determined
last term in Ishister v. BandaU (1). If you are satisfied either of
the truth of our position as to the general law or the particular
custom being established, you will deem the wages forfeited and
dismiss the master with his expenses.
Dr. Wynne. — I contend these men performed their duty, and
were refused their wages for not doing what no custom requires.
It is specified in the contracts that the guards of the ships (on
board lighters) shall be paid particular sums, namely 28. Qd. per
day. There is no proof of the custom alledged. In the coal
trade particular persons unlade. There can be no evidence in a
mariners* cause but that of the persons on board. If their
evidence was improper, their competence should have been
objected to. We have proved it not customary to shovel and
fiU without additional wages. The opponents might have ex-
[(1) Hil. T. 1774, Bye-Day.]
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144 HIGH COUKT OF ADMIRALTY.
1774 amined the mate to shew he had worked without additional
Swisrwrt wages, as well as we to prove the contrary.
Tinker. Court (1). — In this case a suit is brought for four guineas as
the wages due for the run from Gainsborough to London and
back. It is admitted a dispute arose at London respecting the
duty to be done on the delivery of the cargo. A deputy fruit
meter was on board to weigh the potatoes, on whom that duty
lies. The carriage of the fruit from the ship to the craft and
thence on shore is admitted to be the business of the owners.
The dispute arises on the question, who is bound to shovel, fill,
and hoist the potatoes out of the hold ? The men insist they are
not obliged to do it without additional pay of 6d. per ton or 28, per
day. This ship had eighty tons of potatoes ; 40a. is a heavy load
on the freight, if due. It is in evidence the owners sometimes
send men to shovel the fruit, to prevent it being carelessly cut.
It is highly probable this duty lies on the master of the ship.
If so, it lies on the seamen, whom he hires to do the duty of the
ship. In the common course of the trade the owners of the cargo
release the crew and send other men. But if the master is
obliged under the general contract, the mariners are bound
equally. The witnesses all speak to it as a duty on the mariners,
and so understood on the general hiring at Grainsborough.
Nothing is said as to the lading, what the mariners are obliged
to do. The cause is not fully instructed. The evidence of the
mariners in respect to the custom of paying a specific sum is not
to be relied on, as the witnesses who depose thereto, though
competent, are interested. It is not like the evidence as to
navigating the ship, because there no other witnesses can be had ;
in this case there may. It appears to me the mariners are not
entitled to wages, unless they perform the voyage for which they
are hired, and the services attending it. The men do not return
to Gainsborough on board the vessel. The master refusing them
victuals, the men go on shore. They ask the master whether he
will or has discharged them. He answers in the negative. In the
coal and com trade the custom is established, that the mariners
have nothing further to do when they arrive in the river at the
[(1) Sir G. Hay, judge.]
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V.
TiKKEB.
HIGH COUBT OF ADMIKALTY. ^ 145
ship's moorings. The coalheavers then supply their place in 1774
unloading the cargo. In this trade I am far from being satisfied swinnbt
that the Captain must hire other men or pay the mariners this
exorbitant demand. They have usually been satisfied with a
giatnity^ and have not made a demand from the master. The
consignees of the cargo often employ other persons in the
business to prevent the fruit being cut by the shovels and negli-
gence of the crew. I cannot say the mariners shall obtain judg-
ment on the evidence of their interested parties. Nor am I
sufficiently instructed to say the non-compliance of the mariners
with the Captain's request shaU operate as forfeiture of wages.
There is a sort of admission that something more should be given
than the common wages for doing the duty. I will not say the
mariner is obliged to do it. I would much less establish a
demand on the master. The sailors shall be entitled to their
wages for the duty done. No tender has been made. The master
should have discharged the men for refusing to do their duty.
As I am averse to establishing the custom^ so I should be un-
willing to deny them any consideration. I pronounce therefore
for two guineas being due to the plaintiff. It must be very easy
in the future to set the matter right by a special agreement. I
shall consider about costs^ but must give some, as no tender was
made, and I have pronounced for two guineas being due. [I]
therefore desire the costs may be moderately taxed.
DELIVERING POSSESSION.
MEEKE AND Others v. THE LOED HOLLAND, F. NAIEN, 1774
COMMANDEB. f^rd 8em.
Fountain, Gosling y Jim. *^*
Drs. Wynne and BwrreU. Dr. Calvert.
Messrs. Bandall and Gray built the ship Lord Holland for the Q. Hav^
orvice of the East India Company. and i^w 1
1771. 27 March, they by Deed Poll assigned over the hull to ^^^
part owner
of the Xion
Holland?
service of the East India Company. and i^w the
1771. 27 March, they by Deed Poll assigned over the hull to ^^^
John Durand, Esq., for £8849 14a. 8i. part owner*
' ^' ofthelrord
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|'4e HIGH COURT OF ADMIRALTY.
1774 1771. 30 August, Mr. Durand, by memorandum in writing,
declared the Lord Holland to brench off into the following parts:
Heeeb
r.
Tajt Loiiu Sir Lawrence Dundass
John Calcraft, Esq. .
General Richard Smith
J.Powell . • .
Francis Charlton
John Durand, Esq. .
John Durand, Esq. .
W. Nixon
Sixteenth parts.
1
1
2
2
1
8.
1 Thirty-second part.
1 Thirty-second part
1771. 1 November, William Nixon assigned his one-thirty-
second to J. Durand for £573 7a. 9i.
1772. Feb., Mr. Durand sold his nine-sixteenths to Messrs.
Meeke & Lawson ; viz., S. Meeke, five-sixteenths : P. Lawson,
four-sixteenths,
1772. 9 March, Messrs. Meek & Lawson, as major part in value
of the part owners, appoint Mr. Meeke husband in the room of
Mr. Durand.
1772. 9 March, Messrs. Durand & Nixon deliver up the
uvanagement of the ship to Mr. Meeke, and assign over to him
the charter-party of affreightment, dated 25th July, 1770, entered
into by Durand & Nixon as part owners, and Nairn as master in
trust for Meeke and the rest of the owners.
1772. 9 March, J. Durand assigned over to Meeke the hull
and all his interest by virtue of the grand bill of sale.
* . • Mr. Meeke sold one-sixteenth to Lawrence Cox.
1773. June, Patrick Lawson bought one-sixteenth of Jn.
Durand, which he had bought of Sir L. Dundass.
1773. 9 June, the aforesaid one-sixteenth was assigned to
Patrick Lawson by bill of sale.
1773. 26 October, Messrs. Meeke, Lawson, & Coxe, the major
part in value of the owners, again appoint S. Meeke the husband,
and directed Captain Fashion Nairn, and all others concerned, to
deliver the possession and management of the ship to Mr. Meeke ;
who has frequently applied to Captain Nairn to deliver up the
bijip, stores, &c., to him as the husband, which he refuses to do.
1774. 23 March, a motion was made by council that a warrant
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HIGH COURT OF ADMIRALTY. 147
should issue for arresting the said ship, and citing Captain Nairn 1774
to shew cause why he should not be restrained by order of this meeu
Court from proceeding to sea with the said ship, and be compelled rj,g^\^^^
to deUver possession to Mr. Meeke, the husband, who had been Holland.
appointed by the majority of the owners in value.
Godingy Jwnr.y appeared for Nairn, and objected to issuing the
warrant, when the cause was assigned, and now stands on the
Petition of both Proctors. Ooslingy in answer to Fowitain's Peti-
tion, states that a former ship, the Lord Holland^ Captain Nairn,
Commander, was lost in Bengal Biver ; that Captain Nairn was
acquitted of blame, and the Directors gave leave for a new ship
to be built and caUed the Lord Hollandy provided Captain Nairn
was Commander ; in consequence of which an obligation was drawn
up, dated 1st June, 1770, impowering J. Durand to contract for
building said ship, who subscribed for eight-sixteenths, and Cap-
tain Nairn and his friends for eight-sixteenths. 1771. . . May,
the Lord Holland sailed for the East Indies under Captain Nairn's
command; previous to which he purchased Mr. Calcraft's one-
sixteenth ; and the value of the shares not being then known, he
ordered Messrs. Mayne & Needham to pay Mr. Durand the re-
mainder of the money due for Calcraft's and his own one-sixteenth.
Mayne & Needham appUed for Bills of Sale of those two shares,
and offered to pay the money. Durand gave no answer, and
procured a BiU of Sale to himself for eight-sixteenths and one-
thirty-second, and to Wm. Nixon one-thirty-second, which last
mentioned one-thirty-second Durand bought, and asserting him-
self owner of nine-sixteenths assigned them to Meeke & Lawson.
On Nairn's return to England in 1772, he filed his Bill against
Durand for his two-sixteenths. Gosling says P. Lawson sold one-
sixteenth to Gilbert, who sold it to J. Alexander. GosUng admits
Meeke, Coxe, & Lawson are owners of the remaining eight-
sixteenths, viz. : —
J.PoweU 21
R. Smith 2
F.Charlton 1
J. Alexander .... 1
F. Nairn 2 J
Sixteenth parts.
L 2
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148 HIGH (X)UBT OF ADMIRALTY.
1774 FouTUairiy in reply, insists that Meeke, Coxe, & Lawson are
Meeke possessed of nine-sixteenths, and of the original Grand Bill of
Taii^LoBD ^®> besides one-sixteenth purchased by Lawson of Duiand, and
Hdllaiti*. Qf him by Dundass. He denies Lawson's sale, but admits he
mortgaged one-sixteenth to Gilbert and Alexander, with power of
Redemption, about which a suit is now depending ; that Nairn
admits Meeke, Coxe, & Lawson to be owners of eight-sixteenths ;
therefore setting aside one-sixteenth of Alexander and two-six-
teenths of Nairn and Calcraft, Meeke, Coxe, & Lawson hare
eight-sixteenths to eight-sixteenths.
Dr. Wynne. — We prayed a Warrant, and in that a Citation to
be imbodied. The Motion was made 23rd March, 1774. The
Jurisdiction is not doubted or denied, and was exercised in a
late case of The Mary and Anne (1 S. Trin. T. 1771), which was as
follows : —
" 1 S. Trin. T. 1771, Stevens exhibited for Jas. Adams, owner
of one-sixteenth, and husband of the ship, also for Codrington
Carrington, Esq., owner of two-sixteenths ; Benjamin Southwell,
Esq., of two-sixteenths ; William Baker, Esq., of one-sixteenth ;
Isaac de Piya, Esq., one-sixteenth; Thos. Streaker, Esq., one-
sixteenth ; Thos. Harris, one-sixteenth ; and John Price, Esq.,
one-sixteenth ; and all they are altogether the major part owners
in value of the said ship, viz., of ten-sixteenths ; and exhibited
an affidavit of Jas. Adams and prayed a warrant for arresting the
said ship, &c. ; and citing James Crouch, the pretended master,
in special, and aU others in general, to appear and answer to the
said owners in a cause civil and maritime, why he should not be
restrained by order of this Court from proceeding to sea with
said ship, and from conveying her out of the river Thames ; and
why he should not be compelled to deliver up possession to
Captain Thomas Jenkins, appointed master by the major part of
the owners. The Judge having heard the matter opened by Dr.
Harris, and the affidavit of James Adams read) ordered a warrant
to issue under seal as prayed.
" 4 S. Trin. T. 1771. On Stevens' Petition and Jenner to deliver
his answer to Stevens' Petition .... copy affidavits (stc), if any,
four days before, and the Certificate of the Warrant is continued.
Stevens exhibited attestation of Jas. Adams, and another of Samuel
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HIGH COURT OF ADMIRALTY. 149
Scott) with an exhibit. Jenner examined an attestation of John 1774
Crouch, and both Proctors alledged and prayed as in Acts of meekk
Court The Judge, having heard affidavits read, and council on thb Lcbd
both sides, by his Interlocutory Decree at Petition of StevenSy de- Holland.
creed possession of ship in question, and now in custody of the
Marshall of this Court, to be delivered by the said Marshall to
James Adams, the ship's husband, for the use of aU the owners ;
Bail being first given on part of Stevens* clients to answer the
share of John Crouch, and any just demands he may have on the
said ship ; and decreed a monition against the said John Crouch
to deliver up to the said James Adams or his Proctor the ship's
register. Jenner protested of appealing, and instantly did appeal
and deposited £6 for the Stamps, and is assigned to prosecute
the same by the Bye Day."
K.B. Jenner afterwards desisted from prosecuting his appeal.
In that case there had been proceedings in Chancery. Lord
Campden dissolved the injunction, and determined the Court of
Admiralty had sole and full jurisdiction, and could alone decide it
in a summary way. The Question now is merely on the circum-
stances, whether there is any foundation for what we pray, or whether
you will dismiss Captain Nairn. Our parties are admitted owners of
eight-sixteenths by them : we say we have nine-sixteenths. The
Grand and Private Bills of Sale is the only title of the respective
owners. Captain Nairn's Mends, though called, do not appear
before the Court. They give no affidavit, no consent ; do no act
whatsoever. Captain Nairn has no BiU of Sale. When his
agents applied to Durand he gave them no answer, but iustead
thereof bought the eight-sixteenths and one-thirty-second him-
seU. Whether Captain Nairn has sustained a loss by Durand's
proceeding is not the question here. He must resort to another
Court for his remedy. It would be rather unreasonable for him
to retain possession because he has two-sixteenths without any
appointment from his friends, who are (as he asserts) proprietors
of the other six-sixteenths. By the practice there is a method to
be taken ; the majority of part owners may enter into a stipula-
tion to send the ship to sea. We prefer the possession of your
officer to that of Captain Nairn. No good can be expected from
a Captain who would act in opposition to his owners. When the
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150
HIGH COURT OF ADMIRALTY.
1774
p.
Tks LotiD
Holla Nil.
property is equal, and the owners cannot agree, the ship may be
sold. The matter will come more fuUy before you if our prayer
is granted. You wiU then see how the matter stands — who are
Captain Nairn's friends.
Br. Burrell. — The question for the consideration of the CJourt
is, Whether the present application of my cUents is reasonable or
not ? They pray you will decree their possession of the ship ;
and they do it on this foundation, that they have the majority of
interest in point of value, that they are dissatisfied with the
present commander, have repeatedly applyd to him to deliver
them possession, and have been constantly refused by hinu To
this Mr. Naime objects, and desires you will not hear us ; and as
a ground for that prayer, denys the truth of our assertion as to
our majority of interest ; and the better to evince this takes upon
him to shew the Court the precise situation of the respective
owners. In the course of which he admits that we are indis-
putably owners of eight-sixteenths ; and, therefore, we are in aU
events equal in point of value to him and his friends. With
respect to two-sixteenths which we claim, he insists that one-
sixteenth was subscribed for by him, and the which we claim.
He insists that one-sixteenth was originaUy subscribed for by him,
and the other by Mr. Calcraft, of whom he purchased, but was
defrauded by Durand, against whom he has filed his BiU ; and
that the remainder belonged to his friends. With respect to
those in litigation, it must be deemed at least problematical to
\\h.om they belong, and therefore this Court can take no account
of them at present, without in some measure deciding to whom
they belong, a point which is not the subject of our discussion.
It is observable that none of the other part owners appear in
judgment, and therefore you have no ground to say their senti-
ments coincide with Captain Nairn's. It must be noted Ukewise
that our asserted purchase of Sir L. Dundass' one-sixteenth has
passed by unobserved by Captain Nairn ; which being added to
the eight-sixteenths before specified gives us a clear majority of
interest ; in which case the maritime law and the usage of this
Court authorises us to have the possession, and to set the ship out
to sea contrary to the opinion of the minority, on proper security
given to them for their respective interests. If there is a differ-
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HIGH COURT OF ADMIRALTY. 151
ence of sentiments between persons who have an equality of 1774
interest the law has ordered the ship to be sold as the only Mbbu
means left to do eqnal justice. In the present case, throwing the thb Lobd
shares in dispute out of the case, we still have a majority of Holland.
interest, and therefore ought to have our prayer complied with.
Dr. Calvert. — This is a violent attack by those who, I think,
have shewn no title in them to bring this suit. Our request is
not an attempt to stop the course of justice, but is strictly appli-
cable to part of the case they rely on. The objection here is
previous. If you come on a false suggestion of being what you
are not, you have no pretence to the Court according to your
Petition. The case cited is not applicable. In that there was
ten-sixteenths undisputed, who agreed in the application; and
gross misbehavior was shewn. The proceeding in the Court of
Chancery in that case does not apply to the question now before
you. They say they are the major part owners in value. We
can never be too early, if we can bring the case before the Court
to shew the contrary. Suppose they had said we have five-
sixteenths, or even an equality, without any objection, would the
Warrant have issued ? The Court will not peremptorily determine
whether they are major part owners. That question is before the
proper Judicature. That Court can direct a specific performance,
and not merely a compensation for damages. Therefore Mr.
Nairn would have the one-sixteenth decreed, and not redress for
the non-performance of the contract. They begin with a claim
of nine-sixteenths and in the Act try to prove their right to ten-
sixteenths. Mr. Nairn finding himself deceived has resorted to
Chancery. As in the case of a creditor, an action of debt depend-
ing, the Court surceases {me) till the action is determined. By
bringing this affidavit they acknowledge the Court must have
satis&otion of their being a majority of interest. They cannot
pretend to say otherwise. At present their majority of interest
appears merely temporary. The ornamental part is material.
Mr. Nairn was approved of by the Court of Directors. If the
ship was built for the sake of his having the command, it is
probable his remaining with it would be a recommendation to the
Directors to take up this ship.
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152 HIGH COUBT OP ADMIRALTY.
1774 We have asserted a probable case. If not contradicted, it is to
Meekb be taken for granted. They should shew the disapprobation of
The Lord ^® other owners. We assert ; let them disprove ; till then our
Holland assertion is to be taken for truth. There is no pretence for a
hasty determination, as the Court do not take up their ships till
June.
C<mrt (1). — The case cited is not in the least similar as to the
proceedings of the Court of Chancery. The prayer there was for
what that Court thought it had finally no right to determine.
At present the Court of Chancery is applied to for a very different
purpose. It is not to dispossess, but to try who are or ought to
be the owners of three shares, which is proper for that Court, and
as improper for this Court to enter into. We can no more
entrench on their province than they will on ours. When a
right of ownership is in question, this Court will not enquire into
it, because it is admitted to be under discussion in Chancery.
As to all that is suggested in the Act, it depends on the judgment
of the Court of Chancery. Many proceedings were formerly had
in respect to owners which have not been adopted of late years.
On the authority of the decision in the Anne and Mary, I should
have no doubt on the jurisdiction to do as my predecessor did,
where there was a clearly admitted majority of interest. In such
cases a warrant does not issue of course. In the Anne and Mary
I suppose a special application was made to the Court, and to
lead the Warrant it was thought necessary to shew a majority of
interest. You come now on an open question, whether the
Wairant shall issue. Everything is as much laid before the
Court as if the Warrant had issued, and the matter had been
brought on upon the return. Nairn admits Meeke, Coxe, and
Lawson to have eight-sixteenths; five-sixteenths indisputable;
three-sixteenths contested. Nairn comes supported by five-six-
teenths, and three-sixteenths which are disputable. None of
these points are before me ; they should be decided in Chancery
previous to the parties coming here. When that is settled, shew
me a majority of interest, desire it, and I will decree as in the
Ma/ry and Arme. There is no instance of an Admiralty Court
[(1) Sir Q. Hay, judge.]
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HIGH COURT OF ADMIRALTY.
153
interposing to dispossess on an equality; Mdior est conditio
passidenHs. In such case I should incline to Mr. Nairn. Till tha
Court of Chancery has decided who are the owners of these shares,
I cannot suppose they belong to the parties who pray the Warrant
If I decreed it to issue, Meeke would be put into possession, and
Nairn dispossessed. The matter not being clear as to the
property, which must be the foundation of my decree, for want
of knowing who has the majority of interest I must direct that
no warrant shall issue.
1774
Th£ Lord
Holland.
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PRIZE CASES
DECIDED BY THE
HIGH COUET OF ADMIKALTY
AND UPON APPEAL THEREFKOM.
DE VEIENDSCHAP. Africa
A Dutch ship sailed with a lading of timber to Senegal (before
it was taken by the English), delivered it to the French Govem-
menty there took in a cargo of gnm, which was to have been deli-
vered at Port rOrient. She had a French pass procured for this
voyage. Was taken on her return by an English privateer.
1758. 17 Aug. — The Judge of the Admiralty condemned the
ship and goods as lawfuU prize.
1759. 20 March. — The Lords aflSrmed the sentence.
THE SAN VINCENT. America.
Freurh «ettle-
A ship took in a cargo (at Bayonne) of wine, &c.y with which
she sailed to Port Passage, in Spain, thence proceeded directly to
Quebec, then under the dominion of France, there unlivered her
cargo, took in a returned cargo of oil and sailed for St. Sebastian
or Bayonne, on which voyage was taken by a French privateer.
The master gave a claim for ship and. cargo as the property
of a subject of Spain, and as laden in a Spanish ship provided
with a pass, as required by the Treaty of 1667.
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156 PRIZE CASES.
The San 1759. 17 Feb.— The Judge of the Admiralty pronounced
ship and goods to belong to the enemy, or to be otherwise oonfia-
cable, and condemned them to the captor.
1760. 26 March. — Their Lordships, having heard the proofs
by council, are satisfied of the truth of the evidence given by the
three mariners and the clerk in opposition to the master and
mate, who are not only falsified by the said four witnesses, but
materially contradict each other, are falsified by authentic papers
on board, and are no way supported by the pass, which is granted
without oath and conditionally only, expressly referring to further
enquiry whether the property be Spanish, and now appears to
have been obtained on fiEdse suggestions ; therefore affirmed the
decree, condemning ship and cargo.
America, THE ST. SEBASTIAN,
geneml trarle
U>,
A Spanish ship sailed from St. Sebastian with a cargo of fionr,
salt, and other like commodities. The captain's instructions were
to the following effect : " His Majesty, the King of Spain, having
been pleased to permit his subjects to traffick on the banks of
Terra Nova in exchanging goods for Baccalao, by reason of the
great scarcity there is of this nourishment in these kingdoms.''
There was on board a Spanish Pass and all other documents to
prove ship and cargo to be Spanish property.
1758. 16 June. — The ship sailed from St. Sebastian, and was
taken the same day by an English privateer.
17 Aug. — The Judge of the Admiralty pronounced ship and
goods to belong to enemies or to be otherwise liable to confisca-
tion, and condemned the same, no claim having been given in.
1758. 19 Oct. — The master interposed an appeal from this
sentence, and at the same time, agreeable to the direction of the
Prize Act, a claim was given by the master on behalf of Don
Vincente de Tavaletta, a subject of his Catholic Majesty, the true
owner of the said ship and goods taken on board, as laden on
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APPEAL DESERTED. 157
board a ship belonging to the subjects of his .Catholic Majesty The Bt.
fumished with a Pass, as required by Treaty of 1667. ebastia .
1760. 29 March. — The Lords reyersed the sentence of the
Jndge below, pronounced ship and cargo to belong as claimed,
decreed the same to be restored, assigned Bespondents to exhibit
an account of sales within a month.
[The] San Joseph, San Joachim, to the same purpose, exactly at
same time.
THE HOPE. ^pp,„
deserted,
A Dutch ship was taken coming with a cargo from Guadaloupe,
and carried into Antigua.
23 July, 1757.— The Judge of the Vice-Admiralty decreed
ship aild cargo to be restored to claimant. The captors prayed
an appeal, which was granted ; they complying with the rules in
that case required by law ; but they made no application to enter
into security to prosecute the appeal within the time limited by
Act of Parliament, and therefore, 8th August, 1757, a restitution
issued from the Court of Yice-Admiralty ; but the Deputy Marshal
was prevented from executing it by the sheriff (who was said to
be one of the owners of the priyateer), who served the Deputy
Marshal with a Prohibition from the Court of Common Law. The
claimant finding he could not get his decree of restitution
executed, entered into an agreement with the captain of the
privateer, dated 28th September, 1757, that the said captain, his
owners, and company, should have an appeal and should have
liberty to give in any farther evidence on such appeal as they
might be able to produce.
20 December, 1760. — ^The Lords pronounced that the Appeal
was deserted, and gave leave to the Judge below to proceed
according to former Acts.
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158 PEIZE CASES.
Admirals LA PACIFIQUE.
nght to Bhare
in prizes.
A French ship was taken, March, 1758, in lat. 48, off Cape
Finisterre, by His Majesty's ship WindsoTy Capt. Lane Falkner.
6th May, the ship was condemned in the Admiralty Court, when
an appearance was given for Sir Edw. Hawke, claiming one-eighth
as admiral, under whose^ command the prize was taken. Captain
F. denied his interest, which was propounded in an allegation
pleading that, 5th March, 1758, Sir E. H. was appointed by the
Lords of the Admiralty commander of a squadron of men-of-war
to be employed in the Channel soundings, or wherever else His
Majesty's service should require ; and he was thereby required to
take on him the command of said squadron, and all captains and
ofiScers belonging to said ships were charged to be obedient to him
as their commander-in-chief. That annexed to said commission
was a list of what ships the squadron was to consist ; amongst
which is the Windsor^ particularly described to be off Finisterre,
then between Cape Ortugal and Ushant. That by reason of the
premises, the Windsor was, on 13th March, 1758, under the
command of said Sir E. H., who was at that time on board the
Bamilliea, proceeding to the westward. Capt. F. in his answers,
admitted Sir E. H.'s command as pleaded, and gave an allegation
pleading that, 14 Feb. 1758, he received an order of that date
from the Commissioners of the Admiralty, directing him to take
the Coventry to sea and cruise between lat. 48 and 50 till he
should get 120 leagues to the westward, and directing him to
stretch off Cape Finisterre and cruize between Cape Ortugal and
Ushant, taking care to return to Plymouth Sound with both ships
by the expiration of one month from his departure. That Capt
F. sailed for Plymouth with the Windsor and Coventry, 24th
February, 1758, and 13th March foUowing took the Pacifiqm in
lat. 48, with which he returned to Plymouth, 26th March, and
then, and not before, received from Admiral Harrison, then com-
mander-in-chief at Plymouth, an order from Sir E. H., dated
Spithead, 1st March, requiring him as captain of the Windsor to
put himself under his command, and to complete his water and
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OONTKABAND. 159
stores, and provisions to four months, and to keep in constant LaPacuique.
readiness for the sea. (Sir E. H. sailed from Spithead on 11th
of Mardi.) Captain F. did not at that time act under any order
of Sir E. H., but solely under the aforesaid order of 14th
February, 1758, ftom the Lords of the Admiralty. The facts
pleaded in this allegation were admitted by Sir E. Hawke in his
answer.
13th May, 1761. — The Judge of the Admiralty pronounced for
Sir E. Hawke's interest, and that under His Majesty's proclama-
tion he was and is, as Admiral under whose command the Prize
in question was taken, entitled to one-eighth of the Prize, and
decreed the same to him accordingly. Captain F. appealed, and
the Lords, 28th July, 1764, reversed the sentence of the Judge
below, and pronounced against Sir E. Hawke's interest
DIE VIER GEBROEDERS. Contrabwid.
2nd July, 1759. — A ship was seized by an English privateer
at anchor under Dunge Ness lad^i wholly with brandy and salt.
The master had entered into a charter-party at Bochelle, 13th
June, 1759, with one Queurt, an inhabitant of that city, to sail
from thence to Sendees, near St. Martins, in France, there to
take his full lading of brandy and salt and carry it to Dunkirk,
the port of his unlading. The master gave in a claim for the
ship as the property of Jacobs and others, merchants of Amster-
dam, and for the cargo as privileged, as being laden in a ship
belonging to subjects of the States General.
13th November, 1759. — The Judge of the Admiralty decreed
the ship to be restored to the claimants, but that Dunkirk being
blocked up at the time of the capture, the cargo thereby by its
nature became contraband, and therefore condemned it as lawful
Prize.
15th July, 1760.— On appeal, 15th July, 1760, the Lords de-
clared that, it not appearing judicially in this cause what the
state of Dunkirk was, or that His Majesty's fleet lay before it,
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160
PBIZE OASES.
2nd August, 1759, though of public notoriety and the cargo
indisputably belonging to the enemy, and the claimant having
no otherwise interest than in the privilege of the ship, and it
being just that any further examination should be at the peril of
costs, upon the claimants giving good security in £500 within
two months to pay such costs as may be awarded, reversed that
part of the sentence which condemned the cargo, and ordered the
parties to plead and prove within three months, and in de&ult of
the claimants giving such security within the time aforesaid the
sentence to be a£Srmed.
Conuabwid, ST. JACOB.
A Danish ship took in a cargo of oyl and a quantity of lemons,
with which she was taken on her voyage to Havre de Grace.
The Judge of the Admiralty pronounced that the goods were of
the nature of contraband, or as the goods of enemies, or otherwise
liable to confiscation, and condemned the same, but pronounced
that the ship belonged to Danish subjects, and that the lemons
belonged to the master, and decreed the ship and money produced
by the sale of the lemons to be restored to the master for the use
of himself and the owners thereof.
28th June, 1759. — The Lords reversed the sentence ; declared
that under the circumstances of the case, the cargo or any part
thereof ought not to be deemed contraband ; pronounced it to
belong as claimed, and decreed that the net produce of the sale
be restored to the Proctor for the owners.
ClJtJfilll ftt
IL SANTO CRUCIFIXO; N^ S*^ DELLA MISERI-
CORDIA; IL SANTO NICOLA.
A Genoese ship took in a cargo at Marseilles consigned to a
person at Teneriffe ; but not meeting with a market there, deter-
mined to go to Monte Christi ; in the prosecution of which
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CAPITULATION OF THE HAVANNAH. 161
Yoyage he was taken by an English man-of-war, and carried into II Banto
Jamaica, and proceeded against as Prize. The master gave a Nba.Senoba
claim for the ship, as the property of himseK and three other ^^^f
Grenoese, and for the cargo, as the property of himseK and Bene- II Santo
detto Lunoro, then Genoese consul at Marseilles, another merchant
a subject of Genoa. The examinations and ship's papers verified
the daim ; upon which the Judge of the Vice- Admiralty declared
it appeared to him from the Proofs that the ship and cargo were
neutral property and not destined to the enemy, so decreed them
to be restored to the claimant.
Ist May, 1764. — On appeal, the Lords reversed so much of the
sentence as restored the property of Benedetto Lunoro, the
Grenoese consul, and pronounced the same to be liable to confis-
cation ; he appearing from the evidence to have been a merchant
resident at Marseilles, and condemned the same as lawful Prize
to the captors, and decreed the ship and the rest of the cargo to
be restored to the claimant.
N.B. — Lord Mansfield offered to assign Mr. Attorney General,
Sir Fletcher Norton^ a day to argue the question whether Lunoro,
as consul, was by the Law of Nations entitled to privilege for the
goods in question, but he declined accepting it.
THE CONSTANZA (1). Capitulation
of the
A Spanish merchant ship lying in the harbour of the Ha-
vannah, laden with sugar, cocoa, snuff, tobacco, hides, and logwood,
was delivered up to the English at the time the city surrendered
by capitulation. By the third article of which it was stipulated,
^ That all ships in the harbour of the Havannah, and all money
and effects whatever belonging to His Catholic Majesty, shall be
delivered up to such persons as shall be appointed by Sir G.
Pococke and the Earl of Albemarle to receive them." (11th
article), ^ That all the inhabitants, Europeans and Creoles, in the
city shall be left in free possession of their estates and all other
[(1) See as to this case, supra, pp. 6, 47.]
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1(12
PRIZE CASES.
The Gok- effects, moveables, and tenements of any quality or kind what-
iSTAhzA, ever." The Canstanza was proceeded against in the Court of
Admiralty as Prize, and, 16th March, 1763, a claim was given
for Don de Ugue (?) Osorio, inhabitant and resident in the
Havannah, on behalf of himseK and other inhabitants of the said
city at the time it surrendered, for the ship and goods as their
property.
4th May, 1763.— Sir T. S. (1), Judge of the Admiralty, rejected
the claim, pronounced the ship and goods to be lawfull Prize, and
condemned the same as such taken by His Majesty's fleet and
army at the surrender of the Havannah.
16th July, 1765. — On appeal, the Lords, it appearing by the
Articles of Capitulation that all the Spanish ships in the harbour
were expressly to be delivered up without restriction or exception,
dismissed the Appeal and confirmed the sentence rejecting the
Claim, and condemned ship and cargo as Prize delivered up by
the Capitulation.
OihpihilAti
f)f Mjmila
Capitulation
ila.
THE SANTISSIMA TRINIDAD, alias EL PODEEOSO.
A Spanish ship was taken by the Argo and Panther, men-of-
war, near the island of Capull, one of the Philippine islands,
30th October, 1762. The city of Manila and all the Philippine
islands had surrendered to the English, 1762; before which,
namely, 1st August, 1762, the Trinidad had sailed from Manik
for Acapuleo, but receiving damage in a storm, put back to refit
at Manila. By 1st art. of the Capitulation it was stipulated,
** That all the effects and possessions of the inhabitants of Manila
and its dependencies shall be secured to them, under the protec-
tion of His Britannic Majesty, with the same liberty they have
heretofore enjoyed." 4th art. — That the inhabitants may carry
on all sorts of commerce as British subjects.
14th Nov., 1763. — The Trinidad and her cargo were condemned
in the High Court of Admiralty, as lawful Prize to the Argo and
Panther, no claim having been given.
[(1) Sir Thomas Salisbury.]
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CAPITULATION OF MANILA. . 163
13th Nov., 1764. — An appeal from this sentence was interposed The Santk-
in the name of an inhabitant of Manila for said ship and cargo, d^^J^El
as the property of himseK and other inhabitants of Manila, the l*o»"»o8o.
same not being liable to confiscation under the aforesaid articles
of the Capitulation.
14th Aug., 1765. — The Lords declared that if the matter was
doubtftill,the Capitulation ought to be construed liberally in favour
of the claimant, but they are of opinion that there is no room
for any doubt. The agreement to preserve the city of Manila
from the plunderer and the inhabitants in their effects and pos-
sessions, for a price to be paid, is manifestly ransoming what fell
under the power of the conqueror, in consequence of the place
having been taken by storm, but can have no relation to any
effects or possessions in other parts of the world, not under the
power of the conqueror, nor subject to the fate of the place. The
answer to the 4th and 6th articles of the Capitulation is in express
terms, no more than what must necessarily have been implied
from receiving the inhabitants of Manila under His Majesty's
GU)vemment and Protection, that for the future "they might
carry on all sorts of commerce as British subjects." But as
British subjects they could not carry on this commerce, much less
claim effects taken on board a man-of-war belonging to the king
of Spain, which the preparatory examinations prove the ship in
question to have been, and everything relative to this adventure
had been carried on by them as Spanish subjects, and the ship
had begun her voyage long before the place was attacked. A
particular stipulation adapted to the case was absolutely necessary
to secure any ship and cargo then at sea from capture by His
Majesty's ships, but no ship is mentioned except the Philippina,
and the stipulation concerning the PhUippina and her cargo
proves expressly that both parties understood that a ship and
effects then at sea belonging to inhabitants of Manila might be
taken as lawfull Prize after the Capitulation. Therefore their
Lordships adjudicated the claim to be dismissed and affirmed the
sentence of the Judge below.
M 2
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164 PKIZE OASES.
Eoatindto NOSTRA SEIGNORA DEL CARMEN.
goods.
China teas, &g., found on board a Spanish ship bound from
Corunna to Nantz were by the Lords of Appeal (29th March,
1759) condemned as French property ; the ship being decreed
to be restored to the Spanish claimant.
THE ST. JUAN BAPTISTA.
A Spanish ship, in April, 1757, took from on board a French
East India ship in the Boad of Port Passage a loading of tea,
coffee, and logwood, on freight to carry to Nantz. The master
swore he was fully satisfied the cargo was shipped on account of
French subjects ; but there was a Bill of Lading on board ex-
pressing it to be on account and risque of a Spaniard. The
Judge of the Admiralty pronounced that the goods were at the
capture the property of French in prosecution of the voyage
from the French East Lidia Settlements to Old France, and as
goods of enemies or otherwise liable to confiscation ought to be
condemned, but restored the ship to the claimants.
July, 1759- — The Lords reversed the sentence and decreed the
ship and goods to be restored, but without costs, in regard the
pass was not in the form agreed by the treaty.
E^8t India THE JESUS.— THE MAEIA.— THE JOSEPH.
gooda.
A Spanish ship was taken in her voyage from Corunna to St.
Sebastian^ with a loading of coffee, saltpetre, dye-wood, pepper,
and Lidia bail goods, which was all on board from a French East
India ship then lying there, by a Spaniard for account of a
person resident at St. Sebastian to whom they were consigned.
The ship was claimed as the property of a Spanish subject, and
likewise as laden on board a ship belonging to the king of Spain.
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EAST INDIA GOODS. 165
The master^ on his examination, said that the voyage on which The Jbsub,
he was tctken was to have ended in France, and that he believed tkb Joseph.
the lading belonged to French subjects, and that Spanish coasting
yessels were made use of to protect said goods from the English
cruisers. Four other of the mariners swore to the same effect.
27th Dec., 1756. — The Judge of the Admiralty pronounced
just cause of seizure, and condemned the claimant in expenses ;
furthermore pronounced that the saltpetre seized is in the nature
of contraband, and condemned it as lawful Prize to the captor ;
but pronounced that the ship and rest of the goods belonging to
the claimants, and directed the same to be restored, paying
expenses. An appeal was interposed, to which the respondent
adhered, forasmuch as the Judge had not condemned the ship
and all the cargo as lawfuU Prize.
15th July, 1759. — The Lords assigned the claimant to make
proof that the ship and cargo were Spanish property, and
that the ship, when taken, was bound from Corunna to St.
Sebastian, and to no other port within two months. An allega-
tion was accordingly given and was examined 17th Dec, 1760.
The Lords took time to deliberate till the first Court after the
holydays. 5th Sept., 1761. — Respondent's Proctor presented a
petition desiring to withdraw his adhesion to the appeal, which
he was permitted to do, and the Lords affirmed the decrees of the
Judge below and decreed the cause to be remitted.
THE SAN JOSEPH.
5th Feb., 1761. — The Lords determined in the same manner.
THE BEAVER. Flag of truce.
The ship Beaver, of 300 tons burthen, the property of mer-
chants of Philadelphia, obtained a commission for a flag of truce
or cartel from the Governor of Pennsylvania to the following
effect : " Whereas in pursuance of the rules and practices of war
I have despatched the ship Beaver under the protection aud
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166 PRIZE CASES.
TuE Beater eecurity of a flag of trace to carry to Port-an-Prince in the island
of Hispaniola the French prisoners specified in a list hereto
annexed, and to bring from thence snch of the subjects of His
Brittannic Majesty as may be delivered in exchange for said
prisoners ; These are to require all persons in this Goyemment
and to entreat all others to permit said Hugh Wright, with his
Tessel and prisoners aforesaid, to pass upon this service without
hindrance, that so there may not be any impediment put to the
mutual relief of prisoners." The ship sailed from Philadelphia to
Port-au-Prince, having likewise on board twelve casks of dry
goods, some empty barrels, and some Portugal and Spanish
money. The goods were sold at Port-au-Prince, and about 500
hogsheads of sugar taken on board in return, but no English
prisoners, in exchange. Soon after the Beaver's departure (which
was 14th January, 1769) from Port-au-Prince, she was fired at
and brought to by the Eagle privateer, which put a prize master
and three or four men on board the Beaver ^ with a copy of the
Eaglets commission, and three or four of the Beaver*8 men were
put on board the Eagle. It appeared that several other English
flags of trace sailed from Port-au-Prince at the same time, which
were all brought to and treated in the same manner by the
Eagle.
15th Jan., 1760. — The Beaver was seized by the Trenty man-
of-war, carried to Jamaica, and proceeded against as Prize.
A claim was given for ship and cargo by Davell, who was on
board as supercargo, as property of British merchants, and the
above facts appearing, the Judge of the Vice-Admiralty, 14th
May, 1760, decreed ship and cargo to be restored to the claimants.
13th July, 1762. — On appeal the Lords reversed the sentence
and pronounced ship and cargo to be liable to confiscation, and
condemned the same as lawful Prize to the captors.
To the same purpose the Lords decreed the following ships : —
13 July, 1762— Brig, Chester.
13 July, 1762— Tyrrell.
17 Dec., 1762— Miriam and Anne.
„ Sophy.
17 Dec., 1762--Venture.
17 July, 1762— Four Brothers.
5 March, 1763— Bawler.
„ „ Nancy.
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JOINT CAPTUBE. 167
5 March, 1763— MoUy.
„ „ Triton.
„ 9, Schooner, Chance.
y, ,y Carrington.
n „ William and Mary.
„ „ Union.
9 July — Sloop, Greyhound.
9 July — JasseU.
„ Hannibal.
„ General Amherst.
1 May, 1764 — Louisburgh.
16 July, 1765 — Beggar's Benison.
„ ,, Alexandria.
THE AUGUSTA ; THE MAKLBOKOUGH ; THE PKINCESS Joint capture.
MAEY; and relating to LE MAES, &c.
The Mars, and other French ships, were taken, 24th December,
1757, by His Majesty's ships Atigvsta, Capt. Forest, near Petit
Goaye, a French port in Hispaniola, and carried to Jamaica,
where a monition issued from the Vice- Admiralty ; on return of
which two claims were giyen in, viz., by Capt. Robert Falkner on
behalf of himself, as commander of the Marlborough^ his officers,
and mariners, and by Capt. Craven, as commander of the Princess
Mary, as joint captors. The case was thus : The Marlborough,
Princess Mary, and Augusta, sailed from Jamaica 6th December,
1757, under Admiral Cotes, to be employed on such service as
the Admiral should think proper. The Augusta, having sepa-
rated from the fleet by signal on the 13th or 14th received
intelligence that ten or twelve merchant ships were ready to sail
at Port-au-Prince, which Capt. Forest communicated to the
Admiralty that evening.
13th December. — Admiral Cotes despatched his sloop ofif Port-
au-Prince, which returned about the 21st, with intelligence that
the aforesaid merchant ships were at Port-au-Prince. 22nd,
Capt Forest went on board the Admiral, who then declared his
doubts whether the French shipa would come out, but at last
directed Capt. Forest, with the Augusta, to go ofif the Island of
Gronarve ; but strictly charged him not to exceed the 25th before
his return, declaring if the French ships should not be seen by
that time, he would proceed to windward, and that in the meantime
the Admiral, in the Marlborough, and the Princess Mary, would
cruize ofif Cape Nicolas. The Augusta accordingly proceeded ofif
the Island of Gonarve, pursuant to orders, and in the night of the
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168 PRIZE CASES.
The Augusta; 23rd and morning of the 24th of December aforesaid took the
borough;^ •''<*^^ ^^d eighty other merchant ships near Petit Goave. This is
imuby^^a^ the substance of Capt. Forest's deposition, who was examined for
RELATING TO tho Bospondents, and said that the taking the ships was in some
* measure owing to the orders deponent had received firom
Admiral Cotes, but not to any particular disposition that was
made of the three ships to his knowledge. Admiral C!otes was
also examined for Respondents, and said that in consequence of
/ intelligence he received from the sloop he despatched ofif Port-
au-Prince he made the following disposition of the three ships,
viz., he ordered the Augusta to cruise between the Isle of Gonarve
and Petit Goave, being the narrowest channel from Port-eu-
Prince, and the Marlborough and Princess Mary to cruize between
the north side of Gonarve and the Platform, to intercept the said
French ships, and only knows of those two channels by which
ships can sail from the harbour of Port-au-Prince to Europe, and
thinks the capture of the Mars and eighty other ships taken by
the Augusta was entirely owing to the deponent's orders, and to
the disposition made by him of the three ships ; that the MarU
horough and the Princess Mary were actually employed in the
same service as the Augusta^ and were blocking up and guarding
the other channel from Port-au-Prince, and thereby, in deponent's
opinion, aiding in, or a means of, the captures aforesaid. The
commanders of the three ships were under an agreement of
dividing equally any Prizes they might take ; but the other
ofiScers and crews of the ships were under no such agreement.
26th August, 1758.— The Judge of the Vice-Admiralty at
Jamaica pronounced the said Robert Falkner and Thomas Craven,
their officers and mariners, were equally entitled to a proportion-
able share of the said ship, Mars^ and her cargo, with the Augusta^
and the captain, officers, and mariners of her ; and that such part
must be delivered over to the said R. Falkner and T. Craven,
their officers and mariners, pursuant to His Majesty's declaration
of war.
From this sentence Capt. Forest, on behalf of his officers and
mariners, appealed. The Lords, 19th July, 1760, reversed the
decrees of the Judge below, and pronounced the Augusta to be
the sole captor of the ships in question, and that the said ships
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JOINT CAPTUKE. 169
and cargoes belong solely to the captain, officers, seamen, and Thb Augusta;
others of His Majesty's ship Augusta^ on board at the time of the borough; Thb
capture, without prejudice to any private contract touching the j^^^^^
same. And their Lordships takins: notice that the Court of Vice- bblatinq to
'^ , . . Lb BlARa» &a
Admiralty at Jamaica had divided the nine ships into nine causes
upon each claim, declared the same irregular and tending only to
vexation and accumulation of expenses, and that the same ought
to have been proceeded in and heard as one cause.
THE TOUKAINE.
His Majesty's ships, Chichester and Im^ cruizing in company,
about 9 in the morning, 4th January, 1758, the Chichester
descried and gave chase to a sail in the N.W., which the Im
also chased, came up with, and seized as Prize in sight of the
Chichester f between 10 and 11 that morning. Whilst the Isis
was taking possession of the Prize about noon, the Chichester saw
another sail in the N.W., and chased till about 2 in the after-
noon, when she split her main topsail, and then made signal to
the Isis to chase that ship also. The Chichester^ having bent
another sail about 8 in the afternoon, renewed her chase, and
continued it till 5 that evening, when, it growing dark, the
Chichester wore for the security of the Prize taken in the morn-
ing ; but the crew of the Chichester saw the Isis continue her chase,
and there appeared the greatest probability she would come up
with the ship chased, which she did next morning, and took. It
was called the Towraine. A monition issued from the Court of
Admiralty to show cause why said ship Towraine should not be
condemned to the Isis^ on return of which an appearance was given
for the commander of the Chichester as joint chaser with the IsiSy
who denied them to be so, on which an allegation was given for
the Chichester y stating the aforesaid facts. The French captain
has two lieutenants and four other witnesses, three of them belong-
ing to the Chichester (having just purchased their interest), were
examined and proved the facts stated in the allegation. Two
witnesses swore that two of the officers of the Isis told them after
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170 PRIZE CASES.
The their return to Portsmouth, that the ship taken by the his,
5th January, was the same chased by the Chichester and Im on
the 4th in the afternoon.
11th December, 1758. — The Judge of the Admiralty, having
before condemned the ship to the Im^ reserving the interest to
the Chioheater, pronounced the Chichester to be a joint captor
with the Isis. On appeal, the Lords affirmed the decree of the
Judge below, and, 14th March, 1760, decreed the cause to be
remitted.
LE HAZAKD.
A French ship, the Hazard, of Bourdeaux, was taken, Ist
January, 1757, by the True Blue, Privateer, and carried into St
Christopher, where she was proceeded against as Prize. 8th Feb-
ruary, 1757, an allegation was given on behalf of the owners of
the Tyger, Privateer, claiming a moiety of the Prize, and setting
forth that, 10th December, 1757, an agreement in writing was
executed jointly by the captains of the Tyger and True Blue pur-
porting that said two privateers should consort for two months,
within which, if any Prize should be made by either, in company
or separately, the same should be equally divided between aU
parties interested in said privateers ; that after executing such
agreement said two privateers did consort and accidentally parted
in a chase, and long before the two months expired, viz., 1st
January, 1757, the True Blue took the Hazard of Bourdeaux ; of
which legal proof being made, prayed that a moiety of said ship
and cargo may be decreed to be delivered to be divided amongst
the owners, &c., of the Tyger. To this allegation the Captain of
the True Blue gave in his answers, in which he said that, 4th De-
cember, 1757, having the True Blue under his command, he met
accidentally with the Tyger off the Island of Eustatia ; that on
5th December the two privateers anchored at the Island of St
Martin, and the captain of the Tyger dined with Bespondent;
when it was proposed between them that said privateers should
keep together for one month, if they should think proper, and
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JOINT CAPTUKE. 171
whilst in sight of each other should observe certain signals, which Lb Hazabd.
were put in writing and signed by the two captains respectively,
and denies any other written agreement was ever made between
them ; that said ships kept company from 5th to 16th December,
on which day Bespondent determined to keep the Tyger company
no longer, which he communicated to his crew ; and accordingly,
on 16th December, parted company with the Tyger, and, 1st Jan-
nary, took the Hazardy the Tyger not being in company with or
assisting Tnie Blue in said capture. Some witnesses were ex-
amined, who deposed to the same effect.
17th February, 1757.— The Judge of the Vice- Admiralty Court
at St. Christopher dismissed the owners, &c., of the Tyger with
costs of suit, and pronounced the Trm Blithe to be entitled to the
whole of the Prize.
14th March, 1761. — On appeal, the Lords affirmed the sentence
of the Judge below, and decreed the cause to be remitted.
THE AKC EN CIEL.
The Are en Giely a French man-of-war, of fifty guns, was taken
in fight by the Litchfield and Norwich, men-of-war, in sight of the
Centurion and Fourgeux, men'K>f-war, 12th June, 1756, as she was
going into Louisburgh. A claim was given for the captain of the
Success, man-of-war, as joint captors. Their case was as follows : —
10th June, 1756, the Fovrgeux, Centwrion, Litchfisld, Norwich,
Success, and Baltimore, were cruising in company; that at 8
in the afternoon, 10th June, the Success was separated from the
Litchfield and Norwich by a thick fog, and never saw them after
till the evening of the 17th, when they spoke with the Lvtchfidd,
who then informed them of their having taken the Prize in ques-
tion on the 12th. A paper containing the aforesaid narrative of
the cruize was sworn to by the master and four other officers of
the Success (who had not released their interest). Upon this
evidence only the Judge of the Vice- Admiralty at Nova Scotia
pronounced that the ships mentioned in the said narrative were
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172 ^ PRIZE CASES.
The Abo eh all of one squadron and on the same cruize, and decreed that the
ClBL. . .
money arising from the sale of the Prize should be distributed
according to the proclamation amongst the captors belonging to
the said ship.
14th March, 1761. — On appeal, the Lords reversed the decree
appealed from ; pronounced that the Are en Cid was taken by the
FourgeuXy LUehfieldy Norwich^ and Centuriony and that the respec-
tive commanders, &c., on board said ships at the capture are the
only persons entitled to share said Prize.
NOSTRA STA. DE LA CONCEPTION, Y ST. FRAN-
CISCO DE ASSIS.
A Spanish ship bound from Marseilles to Martinico, was taken
near Martinico by the Johnson and Dove, privateers. 20th June,
1757, the Judge of the Vice- Admiralty at St Christopher con-
demned ship and cargo, reserving the determination of what
shares in the Prize each privateer should be entitled to. An
allegation was given for the Dove, to which the commander of the
Johnson gave his answers, and several witnesses were examined.
The account given by the master of the Prize, with which the
rest of the witnesses agreed, was that he was chased by the John^
son and Dove ; that the Johnson endeavoured to cut him off from
the land of Martinico ; that the Dove fired a single gun firsts and
then a broadside at deponent's ship, and then tried to get between
deponent's ship and the land. Deponent struck his sails as much
to one as to the other, being apprehensive both were going to fire
broadsides into him. The Johnson did not fire a shot at him, but
was within gunshot of him ; after striking his sails, deponent
hoisted out his boat and went on board the cToAn^on, whose people
took possession of the Prize before those belonging to the Dewe.
The Johnson had ninety-five, the Dove only fifty-six, men on
board.
2nd February, 1757.— The Judge of the Vice-Admiralty at St
Christopher declared it appeared that the two privateers were
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JOINT OAPTUKE. 173
jointly concerned in taking the ship ; that there was a difference Nostba Sta.
in the size, number, and weight of guns, and number of men of otkhon^y
the privateers. That courage and force were not so requsite in ^'^^^^^
taking said ship as conduct in cutting her off from the land.
That both privateers were equally forward and attentive in their
duty, and therefore decreed one moiety of the money arising from
the sale of said Prize to the Johnson, the other moiety to the
Dovey and that the costs be defrayed out of the produce before the
shares are paid.
23rd June, 1761. — On appeal, the Lords reversed the decree of
the Judge below, and pronounced that the captors should share
according to the number of men on board their respective ships.
L'INDUSTKIE.
A French ship was taken on the coast of Hispaniola by a
barge belonging to the Hero, privateer, which had been sent to
chase another vessel, and had been separated from her ten days.
On the same day the barge's crew had seized the French ship,
and after they had boarded her, they were chased by a ship
which proved to be a Prize taken by the Fowey, man-of-war,
which had some of the Fowey^s men on board. During this
chase the crew of the Hero sent all the French prisoners taken
on board the Prize they had taken on shore ; soon after which the
Fowey*s Prize came up with them, took the French Prize out of
their possession and carried her to Jamaica. In the Court of
Vice- Admiralty there the captain and crew of the Fowey and
officer of the Hero, privateer, who had commanded the Prize pro-
ceeded against her as Prize. The Judge of Vice- Admiralty con-
demned ship and cargo, two-thirds to the man-of-war and one-third
to the officer and crew of the barge.
28th July, 1764. — On appeal, brought by both parties, the
Lords reversed the sentence of the Judge below, and decreed
diat the whole ship and cargo or the value thereof taken as Prize
by the barge belonging to the Hero, privateer, be delivered or
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174 PKIZE CASES. -
L*l;mc8Tire. paid to William Boon, first lientenant of the Hero, and claimant
on behalf of himself and the owners, &o., of said privateer, to be
distributed according to the articles, but without prejudice to the
owners of said ship Industry and goods, or to any proceedings
that may be instituted as for a collusive capture.
THE ST. JUAN AND THE ST. ANTONIO DE PADUA.
A Spanish ship was taken, 22nd January, 1762, by two armed
cutters, and carried in to Gibraltar. The captain, &c., of the
Terror, man-of-war, claimed to be a joint captor. The case
proved was that about 3 in the afternoon, 22nd January, 1762,
the two armed vessels Enterprize and Oood Intent went out of
Gibraltar Bay. Between 9 and 10 at night the two cutters came
up with the St. Juan and fired two guns at her, upon which she
struck to them, and they put part of their crews on board. The
guns fired by the cutter being heard by the Terror's crew.
Captain Chenery, the Commander, ordered the Terror to be got
immediately under way, which the crew endeavoured by heaving
the anchor, but it being quite calm they were obliged to drop
the anchor again. Next morning about 10, the Terror's crew
saw a ship standing towards Gibraltar harbour, upon which the
captain of the Terror gave orders to see her safe into port, and
the Terror was towed out of the bay, came up with the ship they
had seen about 11, which proved the cutter's Prize, and about 12
the Prize anchored off Gibraltar Mole. Upon this evidence the
Judge of the Vice-Admiralty at Gibraltar pronounced the
Captain, &c., of the Terror joint captors with the cutters.
15th July, 1765. — On appeal, the Lords reversed the sentence,
and pronounced that the Terror was no way aiding or assisting
in the capture of the Prize, or entitled to any share therein,
and pronounced that the Enterprize and Oood Intent were the
sole captors of said Prize and condemned it as lawfull Prize, to be
distributed to the commanders, &c., on board and in the service
of the Enterprize and Oood Intent, pursuant to the Act of Parlia-
ment and His Majesty's Proclamation in that behalf.
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NEUTEAL PROPERTY. 175
DE FOKTUYN. Neutral Port.
A Dntch ship bound for Cape Francois with a licence from
the French king to trade there, being arrived off Hispaniola pnt
into Monte Christi, a Spanish port in that island, and anchored
there, and whilst at anchor was seized by three English privateers,
notwithstanding the Spanish governor came on board and re-
monstrated against the seizure, the privateers carried her to
Jamaica, where ship and cargo were condemned.
12th June, 1760. — The Lords of Appeal declared that ship and
cargo were liable to confiscation, but by reason that this ship
was attacked and taken whilst she lay at anchor in one of the
ports of the King of Spain, within reach of his cannon and under
his protection, contrary to the remonstrances of his governor,
reversed the sentence and decreed ship and cargo or the full
value to be restored to the claimant.
LA FELICITE; N^^ S^^ DEL EOSARIO T SAN Neutral pro-
ANTONIO. ^'*^-
A ship, French property, sailed from Martinico for Marseilles
before declaration of war ; put into Cadiz, 17th May, 1756, on
hearing war was declared, and was there sold to a Spaniard,
obtained a Spanish pass and sailed for Hamburgh, on the way
put in at the Port of London, where the master reported the
vessel at the Custom House. Whilst at anchor in the Hope,
was seized by the Terrible privateer and proceeded against as
Prize. Several claims were given for parcels of the goods as
neutral property, and they were jiccordingly restored. The
Judge assigned the claimant to make further proof of property
of the ship and part of the cargo ; which not being done, he,
23rd September, 1757, pronounced that there was not sufficient
proof the ship and goods belonged as claimed, that therefore
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17& PRIZE CASES.
La Felk^te ; they ought to be presumed to belong to the French King or his
DjiL R09ARI0 subjects, and as such condemned them.
^^' 29th June, 1758. — On appeal, the Lords reversed the sentence,
but without costs or damages, it being admitted that the property
of the ship during great part of the voyage was in enemies, and
the pass not according to treaty nor on oath.
SAN ANTONIO E ALMOS.
A Portuguese ship was taken on her passage from Nantz to
Lisbon with a cargo of skins, wine, and other goods. The Judge
of the Admiralty pronounced just cause of seizure, assigned to
prove the property of the goods and restored the ship.
2nd August, 1759. — The Lords of Appeal reversed the decree
as irregular and erroneous, and declared the treaty of 1654 with
Portugal to be subsisting, decreed ship and goods to be restored.
20th November, 1760. — The Lords decreed to the same purpose
in Notre Dame de la Conception and St. Francois de PatUo.
DE JUFFROW TITIA.
A Dutch ship took a lading of plank at Dantzick, and sailed
with it to Port Louis in France, when the master was paid his
freight for that voyage. At Port Louis the master entered into a
charter party with the French King's Intendant of the Marine to
carry the cargo to Brest on the French King's account ; and by
the Intendant's order the master took on board a French pilot,
and sailed from Port Louis under convoy of two French frigates
for Brest, in which voyage she was taken by an English man-of*
war, who first engaged and drove oflf the French convoy. A
claim was given by F. & A. Hope, subjects of the States Greneral,
lor the cargo as their property, and for all privileges belonging
to ships and subjects of the said States General, and for the ship
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NEUTBAL PROPEETY. 177
by the master as the property of subjects of the States General. J>e Juffiow
On boardy at the capture, was a commission from the Commissary
(xeneral of the French Marine to the French pilot to pilot the
ship to Brest, a French pass granted at the Custom House of Port
Louis, and a charter party entered into there. The master swore
that one Bleemens, a merchant residing at Dantzick, was the
lader of the cargo, that at the time of lading, and till the French
pilot came on board, he belieyes the cargo belonged to the lader.
From the time the French pilot came on board to her being
taken, believes the French King was the owner of the cargo, for
the French pilot told him that the cargo was to be delivered at
Brest on the French King's account.
1st March, 1759. — The Judge of the Admiralty pronounced
that the goods did at the capture belong to enemies and con-
demned the same, but pronounced the ship to belong as claimed,
and decreed the same to be restored with freight
27th March, 1760. — The Lords pronounced that the cargo
appears by the evidence to be French King's property, and that
no person entitled to claim the benefit of the Marine Treaty with
Holland, made 1674, in respect of the cargo in question has
claimed the same ; therefore affirmed the sentence condemning
the cargo.
THE YOUNG WETBE.
The Young Weyhe having taken in a lading of salt at S-
in the river of St. Martin in France, was carrying it to Havre
de Grace, or Honfleur, and if the winds would not permit, then to
Amsterdam ; was taken by two English privateers and carried into
Cork and proceeded against in the Admiralty Court in Ireland.
A claim was given for several Dutch subjects, as the owners of
the ship and cargo. The master in his deposition swore the
voyage was as aforesaid ; that he knew of no Bill of Sale for the
ship, the owners having had her built for their own account;
that the salt was put on board by Mr. Ladvocat, who ships salt at
S for the Farmers Gen. of France ; that the whole lading
N
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178 PRIZE CASES.
Tm. YonKG was for acconnt of the owners of the ship, who were Dntchmen ;
that no Bill of Lading was signed, and he had no paper to proye
the property of the cargo but one which contained an acconnt of
the price of the salt at S , Concealed on board was fonnd a
paper, signed by two French names, declaring what was to be
piiid by the Commissaries General for measuring salt if he dis-
ci) arged his cargo at Havre de Grace, Honfleur, or St. Vallery,
and that he should be exempt from the 5 livres per ton for the
duty of cabotage for this voyage only.
6th September, 1757. — The Judge of the Admiralty in Ireland
condemned ship and cargo as the property of enemies, and
adverse parties in costs.
14th March, 1761. — The Lords ordered the claimants to plead
and prove.
THE YONG VROW ADRIANA.
A Dutch ship was put up at general freight at Cadiz, and took
oil board a cargo of coffee, sugar, indigo, cochnineal, wool, and
otlier merchandize, great part of which was brought from two
Freach ships then lying in the Bay. There were 157 Bills of
Lading on board, signed as well by the captain as the owners of
the goods, and all declared the goods shipped for the account
and at the risk of subjects of the King of Spain and other
neutrals. There was likewise on board an affidavit of thirty
persons, attested by a notary, that the goods on board the said
ship, being the whole cargo, belong entirely to the declarants,
and that no other person had any concern therein. The master
and mariners swore that they knew no more of the property of
the cargo than the Bills of Lading and manifest showed. 2nd May,
1758, the ship was taken by the Nelly's BesoltUion, privateer,
^v ithin a mile of the Port of Cadiz, and carried into Gibraltar.
After the capture several further affidavits of their property in
the cargo were made by the owners at Cadiz and transmitted to
CJibraltar.
15th July, 1758.— The Judge of the Vice-Admiralty at Gib-
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NEUTRAL PROPERTr. 179
raltar restored the ship cts the property of subjects of the States Thb Tonq
General; pronounced that some part of the cargo specified in AdwSlwa.
the sentence, consisting chiefly of wine and money, were not
liable to confiscation, and decreed them to be restored to the
claimants ; bnt condemned the rest of the cargo, consisting of
West India produce. The captors acquiesced in the restitution
of the ship, and paid the captain his freight.
26th July, 1758.— Nicholas Tardy, on behalf of himself and the
several claimants, appealed from that part of the sentence con-
demning the rest of the goods. 31st August, 1759, Seeke
Jeekes; the master of the ship, to prevent the expenses that
must have arisen from prosecuting several appeals in consequence
of the several claims given for the owners of different parts of
the cargo in the Court below, impowered Pet. Erricarte of
London, merchant, to claim the several goods condemned in the
Court below in his name, which was accordingly done.
An appearance was given for the respondent under protestation,
for that the present appeal was prosecuted in the name of Seeke
Jeekes, the master, and that the claim given in before the Lords
was also in his name, whereas in the Court of Gibraltar Jeekes
did not claim any of the goods schedulate, but some were claimed
by Nicholas Tardy and others, and that Jeekes never appealed
from ihe sentence in the Court below condemning toid goods,
but on the contrary petitioned the Judge to be paid his freight
by the captors, which was decreed ; therefore he cannot now
appeal therefrom ; wherefore respondent prayed to be dismissed.
20th December, 1760. — The Lords declared that the captain is
not now at liberty to appeal, under privilege of the ship, but that
the owners may use him on the appeal as a claimant of their
property.
27th June, 1761. — The Lords having heard informations in the
cause, and respondents having made many objections to the credi-
bility of a real sale at Cadiz of a cargo goiag to Marseilles, the
place of its first destination, to be delivered to the original con-
signees, as appeared manifestly in many instances, and alledging
that by the law of Spain and France the goods must have been
cleared out and transboarded, and have paid the duty at Cadiz,
N 2
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1§0 PRIZE CASES.
The Yok(3 and must have entered at Marseilles as continuing French pro-
AeJsiaka. P^rty ; and also urging that the oaths in support of the claims are
evasiye ; and the appellants insisting that neither the law of Spain
nor France was as alledged, and averring that no evasion was
intended nor could fairly be insinuated from the oaths in support
of the claim ; their Lordships thought it reasonable that some
opportunity should be given for further explanation by affidavitB
as to the laws and practice of Spain in relation to transboarding
goods from French to neutral ships, and as to the laws and prac-
tice of France in relation to the importation of the produce of
French settlements in America into France on board a neutral
bottom from a port in Europe ; and that the claimants should be
at liberty to supply the oaths and depositions already made by
declaring whether the property was to continue theirs after the
arrival and delivery of the goods at Marseilles, and likewise to
supply the defect in their oaths by declaring that the price was
actually and bond fide paid to the original proprietors, and how
and where.
In obedience to their Lordships' order affidavits and proofs
respecting the laws of France and Spain were given in on both
sides, and, on 80th June, 1764, the matter came on again, when
the Lords declared from the evidence on both sides that the
transboarding on this occasion was not done in any fair course of
trade or commerce, which ever did, or ever can exist in time of
peace, but was a fraudulent contrivance merely on account of
the war to continue the original voyage and cover the goods of
the enemy to their destined port, entitled to the same privileges
and liable to the same duties and consequences as if they had
arrived on board the same ship on which they were first laden,
and therefore an actual sale for a consideration really paid ought
not to be allowed to screen, but ought to be considered merely as
a mode of unfair assistance to complete the original voyage in
favour of the original proprietors, the original consignees, and
the public revenue of the enemy arising from the duties.
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NEUTRAL PROPEBTY. 181
THE DOLPHIN.
A Danish ship coming from Cette in Languedoc with a lading
of wines, brandy, &c., was taken by an English priyateer and
carried into C!ork. A monition was at first taken oat only
against the cargo, for which a claim was given by the Master, as
the property of subjects of Prussia. There was on board a charter-
party, dated 14th December, 1753, by which Lars Olsen Helt,
commander of the Dolphiuy freighted his said ship to Kirk and
Durante, for account and risk of who shall be stipulated in the
Bills of Lading, to go to Cette, where he should address himself
with his ship to the freighters' correspondents, who shall consign
to him the loading of his vessel ; and he obliges himself to carry
the same to Elsineur, where his affreighters' correspondents shall
declare to him. The captain shall pay the expenses and duties
which concern the ship, and his afifreighters all those which
concern the loading during this voyage. A Bill of Lading,
dated Cette, 14th February, 1759, declaring to have received his
lading of Mauries & Auribut, at Montpelier, by orders for account
of Yanselow, of Stettin, to be carried to Elsineur. An attesta-
tion dated Stettin, 15th November, 1758, by which Vanselow &
Groslar, his partner, make oath that they had given orders to
Mauries & Auribut at M. to pay for them a quantity of wines, &c.,
and to send them by a neutral ship commanded by ... . next
spring for their joint account and risk, and that the same from
the time they were shipped on board said neutral ship were their
neutral property, and that no other person had any property
therein. The blanks for the name of the ship and commander
were filled up by the master in his own name and that of his ship
at the time the attestation was delivered to him. The master
swore in his examination that he was bound to Lubeck or Stettin
at the time he was taken, and that he was totally ignorant in
regard to the property of the cargo. Two other mariners swore
they heard the captain declare he was bound to Havre de Grace
or some other port in France, and that they believed the cargo
on board was to be delivered at some port in France for the
account of French subjects.
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182 PRIZE CASES.
T«E 29th September, 1759. — The Judge of the Admiralty in Iieknd
condemned the cargo. A monition having been taken out by the
captain against the ship, on the day the sentence against the
cargo was pronounced, the master gave a claim for the ship as
Danish property, and on 7th November, 1759, the Judge decreed
the ship to be restored.
27th June, 1761. — On appeals from both sentences, the Lords
affirmed the sentence condemning the cargo, but reversed that
part of the sentence which condemned claimant in costs, and
affirmed the decree restoring the ship, with costs.
THE RAVENS.
The Bavens was taken by an English man-of-war going into
Monte Christi, and carried into Jamaica. The master, in his
examination, said the ship and cargo was the property of subjects
of Denmark. The supercargo, an Irishman, sfdd he did not know
t he owners of vessel or cargo, but the cargo was shipped in the
names of Hugh White & Co. of Dublin ; that they were to go to
New York for instructions from Messrs. Gregg & Cunningham
about the disposal of the cargo, but for want of water, and on
account of contrary winds, they bore away for Monte Christi. A
claim was given by the master for the ship as the property of a
Danish subject, and for the cargo by the supercargo as the property
i>f White & Co. in Dublin, Gregg & Cunningham in New York,
and Vanlement & Sons at Copenhagen. The Bills of Lading
declared the cargo to be for account and risk of Y. & Sons. Con-
cealed on board was found a letter of instructions to the super-
t'argo, signed Hugh White & Co., directing him " to proceed to
New York, if he thought it prudent, but should it be too late, to
m:o to America, or for any other reasons, you may proceed to
Monte Christi, Port-au-Prince, the Cape, or wherever you judge
best. Do for us as if it were your own, and we shall be content."
22nd April, 1761.— The Judge of the Vice-Admiralty con-
demned ship and cargo as lawful Prize.
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PASS-PRELIMINABIES OF PEACE. 183
15th July, 1765. — On appeal, the Lords afiftimed the sentence, The Bayens.
and decreed the cause to be remitted.
LA VIGILAJfTE. Pase.
A French ship, with a valuable cargo and twenty soldiers on
board, sailed from Bourdeux for Cape Francois, with a Pass from
the King of Great Britain's sign manual, and countersigned by
the Secretary of State, dated 24th November, 1763 (the prelimi-
naries of peace having been signed on the 2nd November, 1762).
The ship was taken near Monte Christi by two English privateers
and carried into New York. The Pass was directed " To all our
Admirals, Captains, Commanders of Privateers, Governors of •
Forts, Customers, and all officers civil and military, our Ministers
and subjects, requiring them to permit the French ship called La
VigUanUy Captain Charles La Court, to sail with he^ lading from
any port of France to St. Domingo, provided that said ship do
not carry any goods which are prohibited as contraband.'*
13th April, 1763.— The Judge of the Vice-Admiralty of New
York condemned the ship and cargo to the captors.
28th July, 1764. — On appeal, the Lords reversed the sentence ;
pronounced ship and cargo to belong as claimed; decreed the
same to be restored, or the full value thereof to be paid to the
claimants, and condemned the captors in costs and damages.
THE KING WILLIAM THE THIED. Preliminaries
of peace.
A Dutch ship sailed from Eustatia in October, 1762, took in a
lading of sugar there, for which the French duties were paid, and
sailed for Eustatia on 19th December, 1761. 21st December
was taken by an English privateer and carried to New Providence,
when ship and cargo were condemned. 3rd November the pre-
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tU PRIZE CASES.
The Etxo limmaries of peace were signed and the ratifications exchanged.
^Tnrpp!^*^ On appeal, it was contended for the Appellant that by the ratifi-
cation of the preliminaries the objection to neutrals trading with
the French immediately ceased, and that the periods within which
captures were agreed to be legal affcer the ratification were agree-
ments that were made only between the two belligerent Powers,
and oould not affect neutrals.
15th Febrtiary, 1765. — The Lords affirmed the sentence of the
Judge below, and decreed the cause to be remitted.
Pri^^nM DEHOOP.
pfocecdtDgiw
BeTaral different sets of interrogatories were giyen at Jamaica
and witnesses examined on them who were not on board the
captured ship. 3rd June, 1760. — The Lords pronounced the pro-
ceedings of the Court below to have been irregular in going into
proof in the first instance, and declared that no depositions ought
to be read but of such persons as might haye been examined in
prmparatorio.
THE YONG PETEB.
A Dutch ship was taken coming from Surinam and carried into
Cork. The master, mate, boatswain, and another of the crew
were examined on the standing interrogatories. Five weeks jkfter,
two men were examined, one of whom pretended he had been sent
to the French colony at Cayenne, where he had purchased part
of the cargo.
8th July, 1760. — The Lords rejected the two depositions, as
irregularly taken and unduly procured, and condemned the captor
in costs and damages.
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PBIZE CAUSE PKOCEEDINGS. 185
LA VIRGIN DEL ROSARIO Y EL SANTO CHRISTO
DE BUEN VLAGK
A Spanish ship was met 5th December^ 1756, near the island
of Cuba by the Peggy ^ priyateer^ B<L Haddon commander, who
forceablj took out a quantity of money and other valuable effects,
and then dismissed the ship, and arriying at New York 9th
March, 1757, libelled in the Vice-Admiralty Court against the
said money and other goods. The captain of the priyateer ex-
amined one mariner found on board the ship, whom he detained
when the ship was dismissed, who was a subject of the Grand
Seignor, who swore he belieyed if the yessel had been taken by
any yessel of any nation she would haye been a lawfull Prize ;
that if she had been taken by a Spanish Guarda Corta the whole
crew would haye been hanged as Pirates ; that they conlbiBted of
almost all nations, one of the chief was a Frenchman. 31st March,
1757. — Upon this eyidence the cause was heard at New York,
when the Judge decreed said money and other goods mentioned
in the libel as lawful Prize for the use of the captors, proyided
no just and lawfull claim be made to them within a year and
a day, and that the Libellant stipulate with securities with
the Begistrar of the Court in the amount of the goods (being
£2409 4& \ld.) to bring said amount into Court, when the Court
shall order within the said year and a day. The master of the
Spanish ship haying in the meantime made complaint at Jamaica
and in England of the conduct of the master of the priyateer, in
consequence thereof, 10th March, 1758, the King's Adyocate-
General filed a claim in the Vice- Admiralty Court of New York
for said money and goods in the name of the King, that the
same may be restored to the Spanish subjects interested therein.
To this claim objections were giyen in. by way of demurrer on the
part of the said B. Haddon, for that the King not being alledged
to be any way interested in the effects in question, he was not a
proper party to the suit. 19th April, 1758. — Upon these objec-
tions the Judge of the Vice- Admiralty dismissed the claim giyen
by the Adyocate-General.
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186 PKIZE GASES.
liA ViBfliN 27th September, 1758. — A claim was given in the Vice-Admi-
T Ki. Santo lalty Court of New York against the said sum of £2409 48. lid.,
Bv^S^Lg^k. being the amount of the stipulation bond by Philip Tbanes, who
was the master of the Spanish ship out of which the money, &c.,
had been taken. The claim the Judge rejected, because the
stipulation was only to bring the money into Court within a year
and a day after the sentence, Slst March, 1757, which was now
long since expired.
19th December, 1760. — On appeal, the Lords declared that it
appeared from the case laid before the Judge below hj the re-
spondent himself, that the capture of the effects in question ought
to have been deemed piratical ; that Respondent ought to have
been prosecuted for the same and the effects secured ; that the
proceedings were irregular and illegal, and the sentence of con-
demnation appealed from unjust and warranted by no colour of
proof; therefore reversed the same and decreed the effects to be
restored or the value thereof to be paid to the Claimant, and con-
demned the captor in costs and damages ; and their Lordships
are of opinion that the Governor of New York ought to cause the
Bond given by the captain of the privateer to be put in suit, and
to apply the penalty for the benefit of the claimants.
THE SAN JOSEPH.
A Spanish ship was seized by an English privateer in her
voyage from Guarico to Campeartey ; soon after which the captain
of the privateer having put the whole of the crew of the Spanish
ship on shore near Monte Christi, sent the ship and cargo to New
York under the command of one of his officers. In her passage
thither, 28th December, 1757, the ship was stranded and lost
with the cargo, except about £600. No proceedings were had
towards a condemnation in the Vice- Admiralty Court, but the
captain of the Spanish ship arriving at New York, presented a
memorial to the Governor, who ordered the Advocate-General to
prosecute the recognizance given on issuing the commission to
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PEIZE COUET PROCEEDINGS. 187
the Captain of the Privateer. On hearing the cause on the evi- The San
dence given on both sides, the Judge of the Vice-Admiialty '^*^®"™'
pronounced that the Captain of the privateer had broke his
instructions, and his Bond was therefore forfeited.
19th December, 1760.— On appeal, the Lords declared that, it
appearing that the privateer had set the whole crew on shore and
had not proceeded to adjudication, they therefore pronounced that
tiie Captain of the privateer had broke the King's instructions,
and therefore afiSrmed the sentence of the Judge below, and
ordered the penalty of the Bond, when recovered, to be applied
for the use of the injured party.
LES TEOIS AMIES.
A Dutch ship was taken by two English privateers as she was
coming out of Cape Francois with a cargo of sugar. The Captains
of the Privateers took out all the men and sent the Prize to New
York, where they proceeded against her as Prize of War. The
captain of the Prize, coming afterwards to New York, gave a
claim for ship and cargo as Dutch property. The captors brought
but one ship-paper into the Registry, which was an extract of the
entry of the outward bound cargo from the Registry at Cape
Francois ; but this was not brought in on oath. They examined
the Prize Master of one of the privateers, who swore the ship was
taken as she was coming out of the Cape.
16th March, 1759. — Upon this evidence only ship and cargo
were condemned in the Vice- Admiralty Court at New York.
After which, viz., October, 1759, the depositions of two persons
on board the Prize at the time of the capture were taken by the
captors, who proved the ship had been at the Cape. These two
depositions were brought in with the process.
27th June, 1761. — On appeal, the Lords pronounced that there
was no ground or evidence for the sentence of the Judge below,
therefore by their final decree reversed the sentence, and decreed
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188 PRIZE CASES.
Lb^ TBOI8 ship and cargo^ or the full value thereof, to be paid to the
Appellant.
THE GBAND DUKE OF TUSCANY.
FALSE AND COLOBABLE PAPERS.
The Grand Duke of Tuscany was taken off Malaga by an
English man-of-war. She sailed under Tuscan colors and with a
Tuscan Pass; was navigated chiefly by Italian mariners, and
bound from Eustatia to Leghorn with a cargo of sugar, coffee, and
staves. A claim was given for the cargo as the property of
Messrs. Andrew and Bichard Deu, of Leghorn, merchants, and of
Messrs. Damiane & Lancellotti of the same place, and for the
ship as the property of John Bussell, a British subject, but hypo-
thecated to said Andrew and Bichard Deu by a decree of the
Vice- Admiralty Court of Gibraltar. There was on board a Bill
of Sale of the ship to D. & L. The charter-party and Bills of
Lading were in their names, and the apparent master was Biagini,
a Tuscan. But the witnesses swore that the ship had been
hypothecated and delivered by Bussell to A. & B. Deu, British
subjects and merchants, residing at Leghorn ; that [the] Deus,
to protect the ship from capture from the French, made over the
ship by Bills of Sale to D. & L., but that it was understood between
the parties that these were only colorable; that said D. & L.
agreed to send the ship with a cargo to Eustatia, two thirds for
account of [the] Deus and one third for the others ; but, to cover
the ship, obtained a Tuscan Pass and other documents, and
appointed a Tuscan master ; but the real master was one Hays, a
subject of Great Britain, who appeared on board as pilot. 9th
December, 1758, the Judge of the Vice- Admiralty at Gibraltar
condemned ship and cargo as lawful Prize. 20th December,
1760, the Lords reversed the decree of the Judge below, pronounced
ship and cargo to belong as claimed, and decreed the same to be
restored, or the full value ; but pronounced that there was just
cause of seizure, and condemned claimant in expenses to the
time of decree of the Judge below.
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PRIZE CAUSE PROCEEDINGS. 189
THE ST. ANTONIO DE PADUA, alias THE DRAGON.
PAPERS FALSE AND COLORABLE.
The 8t Antonia de Padua was taken 8th February, 1762 (war
declared between Great Britain and Spain 2nd January, 1762),
coming from Bio de la Hache, a port on the Spanish main, with
a lading of horses and cattle. The ship was taken nnder Spanish
colors. Had on board a Spanish Pass and other Spanish papers
relating to the cargo. Being carried into Jamaica, the ship and
cargo were proceeded against as Prize, being enemies' property.
A claim was given for diip and cargo by a British subject resident
at Jamaica as his property, setting forth that the ship had been
fitted out at Jamaica by him on a trade usually carried on by
him and others with the Spanish main ; and that the Spanish
colors and papers were used only to protect them from French
privateers. The Master by his examination proved the aforesaid
fiEM^ It was also proved by a Begister that the ship was the
property of the claimant ; which Begister, it was proved, was not
usually put on board ships employed in this trade for the reason
aforesaid.
The Judge of the Vice Admiralty decreed ship and cargo to
be restored to the claimant. 1st May, 1764, on appeal, the Lords
affirmed the sentence.
THE SNOW GBEYHOUND.
A British ship coming from Port au Prince, a French port in
Hispaniola, was taken by an English privateer and carried into
Yi^^inia. A libel was exhibited in the Vice Admiralty Court on
the part of the Captain of the privateer, stating that the Libellant
seized said crew, for that the master laded on board her in the
province of Virginia several barrels of flour, bread, beef, and
other victuals, and carried the same to Port au Prince, contrary
to the Statute ; by which said sloop, &c., was forfeited, and that
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190 PRIZE CASES.
The Snow said J. J., the master, hath also forfeited 20s. for eyery barrel of
flour, and 12d. for every pound of said bread and other victual
80 exported, one half to His Majesty and one half to the Libellant ;
and for that the other goods were shipped to be carried to some
other French plantation in America without warrant from the
o£Scers of the Customs, by which said last-mentioned goods were
forfeited, one third to the King, one third to the Governor, one
third to Libellant 26th June, 1762, the Judge of the Yice
Admiralty decreed that said Snow remain forfeited, one half
to the King, one half to Libellant; that respondent forfeit
£7 10s., being the penalty on 150 pounds of bread mentioned in
the libel, one half to the King, one half to Libellant ; and that the
libel as to the cargo and residue of the penalties be dismissed,
the weights and measures of the provisions not being ascertained.
17th December, 1763. — On appeal by the captors from so much
of the decree as relates to dismissing the libel as to the cargo and
other penalties therein mentioned, the Lords pronounced that
the cause below being for penalties on the statute, 30 Geo. 2,
this Court hath not a competent jurisdiction, and therefore dis-
missed the appeal.
THE HELENA.
A Dutch ship sailed from Eustatia to the Island of St. Vincent
about 5th April, 1762 ; sold her cargo of provisions at different
places in that island ; took in a lading of coffee and cocoa in
return, with which she sailed for Eustatia 17th April, 1762.
19th April was taken by an English privateer and carried into
St. Christophers. The captor examined the master and mate in
prssparatorio, who proved the above facts, thai they never heard
the Island of St. Vincent was surrendered to His Britannic
Majesty, and there were no English troops there to their know-
ledge at the time they were there. These examinations were
taken 2l8t April, 1762, and the same day the Appellant gave a
libel praying condemnation of ship and cargo as prize of war, as
having been trading at a French island. No claim was given.
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PRIZE CAUSE PROCEEDINGS. 191
bat in May, 17629 an information was filed hj the searcher of the The Hblena.
Customs at Basseterre that the ship had been trading at one of His
Majesty's colonies, not being qualified according to 7 & 8 Will. 3,
therefore praying that ship and goods might be pronounced for-
feited, one third to His Majesty, one third to the Goyemor, and
one third to the Informant. The Master of the Prize was again
examined on interrogatories giyen by the informant, and swore
he saw the inhabitants sign a Capitulation surrendering St. Vincent
to His Britannic Majesty during his stay there ; and other persons
examined swore that early in April, 1762, several English subjects
obtained passes from General Monkton at Martinico to go and
trade at St Vincent, and went and traded there.
5th June, 1762.— The Judge of the Vice Admiralty at St.
Christophers pronounced ship and goods to be forfeited, one third
to His Majesty, one third to Governor Thomas, governor of the
Caribee Islands, and one third to the informant, the searcher of
the Customs. On appeal to the Lords by Archibald Hunter,
Commander of the Enterprise, privateer, the captor, the respon-
dents exhibited affidavits and certificates in the Court of Appeal,
which proved that the ship cleared out with the officers of the
Customs at Martinico to go and trade at St. Vincent, 3rd April,
1762, and returned with the produce of St. Vincent to Martinico
before the end of April.
15th July, 1765. — The Lords reversed the sentence of the
Judge below, and pronounced ship and cargo to have been taken
by the Enterprise, privateer, and condemned the same as lawful
Prize to the said captor.
THE ISABELLA.
A Spanish ship from Carthagena in New Spain, having on
board a quantity of gold in bars and coin, and some cattle, came
to an anchor in Black River, Jamaica, Ist February, 1762, and
there landed and sold nineteen head of cattle ; after which, 3rd
February, the ship sailed for Port Royal. War had been declared
against Spain in England 2nd January, 1762 ; and, 30th January,
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102 PRIZE CASES.
The 1762, Mr. LyttletoDy Governor of Jamaica, issned an order to the
Collector of the Customs to stop all Spanish vessels in port there,
requiring the commanding officers to be aiding to the Collectors
therein. In the morning of 3rd February, 1762, soon after the
Isabella sailed from Black Biver, the commanders of two English
privateers followed her in their boats and seized her as Prize, and
brought her back to Black Biver ; where, some hours after, she
was taken possession of by an officer of the army with a detach-
ment of his regiment. Application being made by this officer
to the Governor, he issued his warrant to the officers of the
Customs, dated 20th March, 1762, to seize the Isabella and her
cargo for breach of the statute 7 & 8 Will. 3 by an illegal im-
portation. In April, 1762, a monition issued at the relation of
the Beceiver General to show cause why a ship and goods should
not be condemned pursuant to said Act, and in the same month
the Advocate General filed his Information grounded on said
Act, and praying that ship and goods might be pronounced to be
forfeited. 7th May a claim was given for the commanders of the
privateers and others who had first seized the Isahetta, praying
that ship and goods might be condemned to them as good Prize.
Several witnesses were examined, and 22nd October, 1762, the
Judge pronounced ship and goods to be forfeited under the Act
of Parliament.
15th Jidy, 1765. — On appeal for the claimant, the captors, the
Lords by their interlocutory decree dismissed the cause for want
of jurisdiction, the matter being an appeal from the Instance
Court of Vice- Admiralty, but without prejudice of appeal from
said Instance Court to any owner or owners interested.
THE VOBSIGTIGHEIT.
A Dutch ship sailed to Bourdeaux, and took in a cargo of iriiie
and other goods on account of Boche, a merchant of Botterdam,
with which [she] sailed for Curacoa, but was driven on the south
coast of Hispaniola, and there seized by an English privateer and
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PRIZE CAUSE PROCEEDINGS. 193
carried into Jamaica. The captor did not examine either the The Yor-
master or supercargo in preparatory, but examined the others
afterwards on long special interrogatories ; and likewise examined
several persons who were not on board the captured ship relative
to the nature of the cargo on board and the course of the voyage
to Curacoa* The Judge of the Vice- Admiralty at Jamaica con-
demned ship and cargo on this evidence.
8th July, 1766. — On appeal, the Lords declared that the captor
has misbehaved in not examining the proper persons in prepara-
tory ; also declared that it is illegal, unjust, and oppressive, to
examine witnesses in the first instance, as in a cause after the
parties are assigned to plead and prove. Therefore, their Lord-
ships rejected the depositions offered to be read, the same not
having been taken in preparatory; and having heard the pre-
paratory examinations, ship's papers, claim and affidavit read,
reversed the sentence of the Judge below and pronounced ship
and cargo to belong as claimed, and decreed same to be restored,
or the full value thereof paid to the claimant-s.
THE JOHN AND WILLIAM, Brigantine.
An English ship was taken by an English man-of-war coming
from Cape Francois with a cargo of sugar and rum, having gone
there with a flag of truce under pretence of exchanging prisoners.
2l8t July, 1760, a monition issued out of the Vice- Admiralty Court
at Jamaica at the suit of the captors to proceed against the ship
and cargo as Prize. No claim was given, and on the day the time
for claiming expired the Advocate-General, who had originally
been employed for the captors, moved the Court for leave to
amend the Libel by grounding it on the Flour Act, 2 Geo. 2,
which prohibited the exportation of flour, &c., out of the colonies
during the war, under pain of confiscation of ship and cargo. The
Judge of the Vice-Admiralty allowed the motion, after which an
amended Libel was admitted, stating that the master of the John
and WiUiam did in said ship export great quantities of corn, &c..
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194 PBIZE CASES.
Thi jQRiT from the port of Philadelphia to Cape Francois, a French port in
BRiGAjfTisE/ Hispimiola, wherefore praying that the said ship and goods might
be a^ljndged one half to His Majesty, one half to the captors.
Examinations were taken on this Libel, and, 19th Angnst, 1760,
the Judge of the Vice- Admiralty condemned ship and cargo pur-
suant to 30 Geo. 2, one half to the use of His Majesty, one half to
the captors.
On appeal, 9th July, 1763, the Lords reversed the sentence of
the Judge below, and condemned ship and cargo as lawfdll Prize
to the captors solely ; and on account of the misbehaviour of the
respondent, James James, Esq., His Majesty's Advocate-Greneral
of Jamaica, pronounced that he should personally pay the costs
occasioned by the amendment of the Libel relative to the Flour
Act and the subsequent proceedings on such amendment in the
Court below.
The Francis and Sarah, to the same purpose; 9th July,
1763,
The Catharine, to the same purpose ; 9th July, 1763.
TfiE Achilles, to the same purpose ; 9th July, 1763.
The Pollt, to the same purpose ; 9th July, 1763.
The Desire, to the same purpose ; 9th July, 1763.
THE POMPET.
The Pompey was taken by the Trent, man-of-war, on a voyage
from Monte Christi to Philadelphia, and carried into Jamaica.
21flt December, 1761, a monition issued at the suit of the captor
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PRIZE CAUSE PROCEEDINGS. 195
to show cause why the ship and cargo should not be adjudged The Pohpey.
forfeited, one half to the King, one half to the captors, by reason
of the master having suffered his ship and cargo to be taken by
the Charming Sally y privateer, by collusion, and contrary to the
statute 29 Geo. 2. A Libel was filed by the Advocate-General,
setting forth that by said Act '^ In case any ship or goods shall
be taken by any privateer through consent, or clandestinely, or
by collusion or connivance, such ship and goods, and also such
privateer, shall, upon proof thereof made in His Majesty's Court
of Exchequer, or in a Court of Admiralty, be declared to be good
Prize to His Majesty, one half to the use of His Majesty, one half
to the use of such person who shall discover and sue for the
some."
Claim was given by the master, who was examined in interro-
gatories filed for the informant, and deposed that, being appre-
hensive of being seized by an English privateer which was
cruizing off the harbour of Monte Christi, he applied to the master
of another privateer which was lying off the harbour, and obtained
from him a copy of his commission to protect him from capture,
but that there was no real capture of his ship by said privateer,
and that on his being brought to by the Treviity he produced said
commission of the Charming Sally ^ privateer, and said that the
Pompey was a Prize to the Charming Sally, though in truth never
taken by her, but it was a contrivance between the masters of
the Pompey and SaUy to protect the Pompey from being taken.
19th March, 1762.— The Judge of the Vice-Admiralty at
Jamaica decreed the sloop Pompey and her cargo to be confiscated,
pursuant to 29 Geo. 2, in the Libel recited, and condemned one-
half to the King, and one-half to the captor.
9th July, 1763. — On appeal, the Lords dismissed the appeal for
want of jurisdiction.
The Belle Savage, to the same purpose, 9th July, 1763.
o 2
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196 PBIZE GASES..
THE CATHARINE.
A ship, the property of merchants of New York, sailed with a
cargo to Cape Francois, which was there sold, and a full lading of
sugar taken in. Whilst the master lay at Cape Francois, he
procured from Monte Christi the copy of the commission of the
James, privateer, and a letter to Benson, an English prisoner at
Cape Francois, appointing him Prize master of the Catharine.
Sth March, the Catharine sailed from Cape Francois on her return
to , and the same day was taken by the Speedwell, privateer,
and carried to New Providence in the Bahama Islands.
23rd March, 1761. — The captors libelled against ship and
cargo as Prize, and the usual monition was ordered. The same
day the Advocate-General, in the name of Jno. Kemp, commander
of the Speedwell, but without any authority from him, exhibited an
information against the Catharine and her cargo, on account of
the collusive capture, and praying condemnation, one-half to His
Majesty, and one-half to the said Kemp, agreeable to 29 Geo. 2.
Kemp moved that his name might be struck out of the Informa-
tion, as he had proceeded against said ship and cargo as Prize of
war, but the Judge refused to alter the Information. The Court,
on the motion of the Advocate-General, ordered notices to be
afSxed for any persons to appear and show cause why the ship
and cargo should not be forfeited, agreeable to Information ; to
which the owners of the Speedwell appeared, and prayed condem-
nation of the Catharine as Prize of war.
27th April, 1761. — The Judge condemned the Catharine and her
cargo, one-haK to His Majesty, one-half to the Speedwell, privateer,
and dismissed the libel praying condemnation as Prize, with
costs.
1st May, 1764. — On appeal by the captors, the Lords reversed
the sentence of the Judge below, condemned ship and cargo to
the captors solely, and on account of the misbehaviour of the said
Wm. Moxiat in filing an Information contrary to the captor's
libel pronounced that he should personally pay the extraordinary
costs arising on that account in the Court below.
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PKOPEBTY— BECAPTURE. 197
THE GENERAL MURRAY. Property.
The Oeneral Murray was taken, 30th November, 1762, bound
to the Havannah by an English privateer, and carried into New
Providence. The ship was loaded with wine and dry goods. The
master and mariners said in their examinations that the ship
belonged to merchants of Guernsey, where all the cargo was taken
in and regularly cleared out for the Havannah, to which place
the ship was chartered by the owners for other merchants at
Guernsey, whose property the lading was. The charter party was
on board (the Havannah being at that time in the possession of
the English), and certificates from the Governor of Guernsey of
the property of the cargo being in inhabitants of Guernsey. The
Judge of the Vice-Admiralty at New Providence condemned ship
and cargo as Prize of war.
15th July, 1765. — On appeal, the Lords reversed the sentence,
and pronounced ship and cargo to belong as claimed, and decreed
the same to be restored, or the value thereof paid to the claimants.
THE FRIENDSHIP.
' An English ship going to the island of Cuba from Jamaica,
whilst the Havannah was besieged, the Lords, 15th July, 1765,
decreed as in the Oeneral Murray.
THE CHARMING ELIZABETH. Recapture.
A ship, the property of an English subject, sailed with a cargo
from Jamaica to London, was taken in her voyage by a French
privateer, carried into Poit-au-Prince in the Island of Cuba, and
there condemned. Some time after, the master of an English
cartel-ship, with French prisoners from Jamaica, arriving at
Port-au-Prince, purchased said ship and her cargo of the French
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The Florence, 27th November, 1760 ; to the same purpose.
THE PRINCE EDWARD.
An English ship, bound from Jamaica to London, was taken,
30th January, 1759, by a French privateer called the Providenee,
who took out all her crew except Charles Batten, her chief mate,
and a boy, and put some of his own crew on board, who kept
possession of her till February 11th, when the Prince Edward was
retaken by the Mary^ privateer, the captain of which put his mate
and some of his crew on board the Prince Edward, and also put
on board her 469 raw hides, which were his own property. The
Prince Edward remained in the possession of the captain of the
Mary till 17th February, when she was again taken by the Petit
Gtuiva, French privateer, who took out Charles Batten, his original
French mate, and Dan. Wood, who had been put on board as
Prize master by the captain of the Mary, and others, and put a
Prize master and five of his crew on board. 13th February,
Batten agreed with the captain of the Petit Guava for the ransom
108 PRIZE CASES.
Tji£ Chahm' captors, and sent her to Jamaica. On her arrival in the harbour
*'^ Vktil^ there, she was seized by an English man-of-war, and proceeded
against as Prize. The purchaser at Port-au-Prince gave a claim
for ship and cargo as his sole property. Another claim was given ;
for the former owners. \
24th October, 1757.— The Judge of the Vice-Admiralty at \
Jamaica dismissed both claims, and condemned ship and cargo as
lawfull Prize. Appeals were interposed, but that of the former
owner only was prosecuted. i
27th November (?), 1760. — The Lords reversed the sentence con-
demning ship and cargo, and pronounced that ship and cargo did
formerly belong to claimants, subjects of the Crown of Great
Britain, and were taken by the enemy during the war, and after-
wards retaken by the Marlborov>gh^ man-of-war, and pronounced
one-eighth to be due for salvage and the usual expenses.
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RECAPTURE— REGISTKAR'S REPORT. 199
of the Prince Edward, and Batten was carried to Port-au-Prince The Pbikoi
as a hostage, and Wood, the Prize master of the Mary, was per-
mitted to carry the ship into Lucca in Jamaica, where she arrived
25th April, 1759. Immediately on her arrival, Swaine, the
master of the Mary, privateer, proceeded against her in the Vice-
Admiralty Court for salvage as a Ee-captor. The usual monition
being returned, a claim was given for ship and goods by the agent
of the original owners. Witnesses were examined in preparatory
and on special interrogatories ; and 9th October, 1759, the Judge
of the Vice-Admiralty decreed ship and cargo to be restored to
the claimant, paying one-half, free of all deductions, for salvage
to the Belators (owners of the privateer Mary).
13th July, 1762. — On appeal, the Lords reversed the sentence
of the Judge below, and decreed ship and cargo to be restored to
the appellant without paying any salvage to the respondent, but
decreed the 469 hides to be restored, or the full value thereof
paid to the respondent.
THE ST. VIGILANTE. Registrar's
Report.
The Registrar's report as to costs and damages was objected to
before the Lords, but confirmed and a monition for payment
decreed, 15th July, 1765.
The Saint Thomas. It was decreed to the same purpose, 15th
July, 1765.
DE JONKER ALLAED. Ship timijer.
A Dutch ship sailed from Amsterdam in ballast to Riga, there
took in a lading of masts, spars, and planks, and sailed from there
with said cargo to Brest, and in her way thither was taken by
a French privateer.
23rd March, 1757.— The Judge of the Admiralty pronounced
that the goods belonged to enemies, or were otherwise liable to
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aWl PRIZE CASES.
The JoKKis confiscation, and condemned them, and assigned the claimant to
prove the property of the ship. 7th June, 1758. — Pronounced
it did nut appear by lawfull proofs that the ship belonged to
claonant, therefore condemned it.
25tb February, 1760. — The Lords reversed the decree ; decreed
the ship to be restored, and with respect to the cargo ordered the
captor to ]>lead and prove within a month.
D. NELETTA.
A Dutch ship was taken laden with masts and other timber fit
for biiUdiiig men-of-war. Sho was chartered to Messrs. Hopes, of
Amsterdam^ to go from Amsterdam to Biga, there to take in
ma^ts and other timber, and carry it to Villa Franca, and then
deliver the whole cargo. But the master, in his deposition, said
that the charter party was colorable, for that he had orders from
his owners to go to Toulon, and was to have 1,500 guilders more
for freight if he got into Toulon and 150 for himself.
21st IMarch, 1759. — The Judge of the Admiralty pronounced
jtist iiaum of seizure, condemned claimant in expense, but
pronounced ship and goods to belong as claimed, and decreed
the same to be restored. On appeal, the Lords affirmed the
(lecreeB of the Judge below and decreed the cause to be remitted.
B[i&iu.
THE ST. ANTONIO.
A Spanish ship was chartered at Alicant to go and take in a
lading of oyl at Palma in the island of Majorca, and sailed there-
with to Fool and London. With this cargo the ship was taken
by an English privateer and carried into Gibraltar. She had a
Spanish pass on board, and all the witnesses agreed that the ship
and cargo was Spanish property.
30th October, 1758.— The Judge of the Vice-Admiralty at
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SPAIN. 201
Gibraltar, condemned ship and cargo as lawfull Prize to the Tbb
captors. On appeal, the objections for the respondent that the
pass was antedated, viz,, previous to the sale of the vessel (which
had been a French Prize) to the Spaniard ; that the master in his
depositions swore to one person as sole owner, whereas it appeared
by the papers that there were several owners ; and that the claim
was not verified by the ship papers.
20th December, 1760. — The Lords reversed the sentence of
the Judge below; pronounced ship and cargo to belong as
claimed, decreed them to be restored, and condemned the
captors in costs and damages to the time of the sentence in the
Court below.
Los Buenos Amigos, to the same purpose ; 20th December,
1760.
ST. JEAN BAPTISTA.
A Spanish ship on a voyage from Havre de Grace to Cadiz
was seized by the Boebtich, man-of-war, and carried first to Madeira,
where some of the mariners were examined, then to Antigua, the
Bodmeh being bound thither, and proceeded against as Prize in
the Vice- Admiralty Court at Antigua. The ship and cargo,
which was cloth and bale goods, were proved to be Spanish
property. There was a Spanish pass on board granted for
twenty-four months which were expired, but there was a certifi-
cate granted to the master by the Spanish consul at Havre to
return with the ship to Cadiz. The Spanish master refused to
claim his ship at Antigua, upon which, 1st April, 1758, the Judge
of the yice-Admiralty there condemned ship and cargo as lawfull
Prize, but added in the sentence that whereas some doubts
appeared to him touching the legaUty of the capture, therefore,
notwithstanding that the captain had refused to claim the ship
and cargo, he directed that they be delivered, the captor giving
security to answer any appeal that may be interposed within a
year.
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202 PRIZE CASES.
n-F. Jeast 3rd March, 1759. — An appeal to the Lords was interposed, and
K APT 1ST A-
5th March, 1761, claim given for ship and goods by the owner of
the ship. The Lords reversed the sentence of the Jndge below,
pronounced ship and goods to belong as claimed, and decreed
same to be restored and the full value thereof to be paid to
claimant and appellant, and condemned the captor in costs and
damages generally, more especially such costs and damages as
have arisen by the ship having unwarrantably been carried to
Antigua and proceeded against in the Court of Vice-Admiralty
there,
THE ST. ANTONIO.
A Spaniah ship sailed from Passage with a cargo which the
master was ordered to sell either in the English or French colonies
in America^ as should be most for the owner's advantage, and
with the proceeds to purchase a cargo of BaccdlaOy and return
therewith immediately to St. Sebastian. 23rd July, 1758, was
talten near Newfoundland by an English privateer, and carried
into Nova Scotia, when the Judge of the Vice-Admiralty con-
demned ship and cargo.
1st May, 1764. — On appeal, the Lords reversed the sentence,
pronoimced ship and cargo to belong as claimed, and decreed
gams to be restored, or the full value thereof paid to the
claimant
The Xavier, St. Nicholas, St. Igkatio, St. Fbakoisco, 1st
May, 1704.— Decreed to the same purpose.
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SWEDEN. 203
LA VILLE DE BILBOA.
A Spanish ship took in a lading of flour^ brandy, and wine at
Bordeaux, with which, having touched at Bilboa, but without
breaking bulk, she sailed for Gaspey, then part of the French
King's dominions in America. In her voyage thither, 29th June,
1758, was taken and carried into Newfoundland. On board was
a Pass from the King of Spain to sail in the seas and banks of
Newfoundland to obtain baccalao, and a charterparty made out
as if the ship was to be laden at Bilboa, but the master and other
mariners gave the above account of the voyage. The Judge of
the Vice-Admiralty condemned ship and cargo.
1st May, 1764. — On appeal, the Lords affirmed the sentence
and decreed the cause to be remitted.
THE ANGEL RAPHAEL.
A Swedish ship bound from Havre de Grace to Cadiz was
taken by an English man-of-war and carried into Gibraltar. It
appeared the ship had been put up on general freight for Cadiz
at Havre, and had been laden with merchandizes of different
sorts, for which there was 100 Bills of Lading, all expressed to be
for account and risk of merchants at Cadiz, to whom they were
consigned. The master and mariners were examined on special
interrogatories, in which the master said that from the informa-
tion he received from the broker at Havre he verily believed the
whole cargo French property. No ship papers were brought in
by the captor ; after the examinations were taken, an allegation
was given in for the captors, pleading that the ship was Swedish
property but the cargo French property, and a monition was
prayed against all persons to shew cause why ship and cargo
should not be condemned as Prize. No claim was given by the
master for ship and cargo, and at the day of the return of the
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204 PBIZE CASES.
Turn Air^EL moDition (17th January, 1757), the Judge of the Vice- Admiralty
' pronounced all persons contumacious and condemned the whole
6th January, 1768. — On appeal (6th January, 1768), claims
were exliibited before the Lords against the sentence, on the
part of the Spanish owners of the cargo, and monitions to transmit
the ship papers from Gibraltar decreed, which were not returned
till an attachment had issued against the Registrar of the Yice-
Adiniralty Court. Affidavits of their property made before the^
Governor of Cadiz were likewise exhibited before the Lords.
15th July, 1765. — The Lords reversed the sentence of the
Judge belo>^', pronounced the goods to belong as claimed, and
decreed them to be restored or the value thereof to be paid to
rlainiants.
DE MAEIA TERESA.
West India produce, sugar, coffee, and cotton on board a Dutch
fihip which sailed from Amsterdam to Cork ; there took in a cargo
of provisions and carried them to Eustatia, where landed part on
shore, put remainder into ships lying in the port, of what nation
not proved ; returned cargo brought part from shore, part from
ships lying in the port, not proved of what nation ; condemned in
Court of Admiralty for that said goods ought to be presumed to
belong to enemies, or be otherwise confiscable, but ship decreed
U) be restored with freight.
29th March, 1759. — The Lords reversed sentence condemning
the eargfj, and decreed it to be restored to the Dutch claimant,
the weight of evidence being that said cargo belonged to subjects
of the States General.
TuE Johanna Arnoldina, 14th December, 1759 ; decreed to
the isauie purpose.
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WEST INDIA PRODUCE. 205
THE NOVUM AEATEUM.
A Dutch ship sailed to Eustatia and there took in a cargo in
the Boady yiz.^ 107 hogsheads of sugar out of two barques, 15,000
weight of coffee out of another barque which arrived at Eustatia
from Martinico or Guadalupe, whilst the ship lay in the Beads ;
the residue of the cargo was put on board from the shore ; the
cargo was all put on board by Dutch laders and to be delivered
at Amsterdam, but who were the owners (except of a small
quantity) was not proved.
11th October, 1758. — The Judge of the Admiralty decreed the
ship to be restored,, and assigned the claimants to distinguish the
parts of the cargo which were taken from the shore of Eustatia.
24th February, 1759. — ^The claimant offering no specification,
the Judge pronounced that all the goods in said ship taken
ought to be presumed to belong to the French King or his
subjects, and condemned the same to the captor.
24th May, 1759. — The Lords pronounced that the direction
given by the Judge of the Admiralty, 11th October, 1758, and
the several continuances thereof, were irregular and erroneous ;
decreed part of the cargo to be restored to the claimants ; the
rest appearing doubtfull, assigned same to be pleaded and proved
within a month.
Ist July, 1760. — Decreed the rest of the cargo to be restored as
claimed, the adverse Proctor consenting thereto.
Thb Snelle Post, from St. Croix, and The Vryheid, from
Curacoa, 25th March, 1760, decreed to the same purpose.
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20« PRIZE CASES.
THE ST. FKANCISCUS and THE ST. ANTONmS.
20th March, 1760.— N.B.— In this case all the goods were
claimed as the property of the States General ; but it appeared
by the deposition of the master that part of them were really the
property of Irish merchants at Corke, and that the Bills of Lading
expressing these goods to be for the account and risque of sub-
jects of the States General were colorable, but these goods were
restored with the rest.
The D'Aventukb, 19th June, 1760 ; to the same purpose.
The Young Peteb, 8th July, 1760 ; to the same purpose.
The Jane, 8th July, 1760 ; to the same purpose. N.B. — In
this case [The Jane] part of the cargo was Irish property.
THE PETER AND DAVID.
A Dutch ship from Esquebo and Demmerary, Dutch settle-
ments near the rirer Oroonoko in South America, part of the
cargo proved to have been sent in a barque from the French
settlement^ Cayenne.
19th July^ 1760. — Ship and cargo restored.
Tim EiFT, 14tL July, 1760 ; to the same purpose.
The Sea Post* 27th November, 1760 ; to the same purpose.
The Snelle Cooper, 27th November, 1760; to the same
purpose.
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WEST INDIA PRODUCR 207
THE DOLPHIN-
Decreed restitntion of ship and cargo with interest from the
time of sale in the Court below to the time of payment^ and the
same in several of the former causes ; 17th November, 1760.
The Vast Betrowen, 19th December, 1760.
IL SANTO CHRISTO.
A Spanish ship with a cargo, the property of Spaniards, sailed
out of Spanish St. Domingo, with a Spanish pass, navigated by
Spaniards, carrying a governor, passengers, and stores for a new
Spanish settlement on the north side of the Island of Hispaniola,
called Lemana ; on her return home was seized by an English
privateer and carried to New York, when the Judge of the Vice-
Admiralty restored the ship, but condemned the cargo as French
property.
5 March, 1761. — On appeal, the Lords reversed in pain of the
captor duly cited and not appearing ; reversed the decree con-
demning the cargo, and pronounced that as well the ship as the
whole cargo belonged to the claimant and appellant, to whom
decreed the same to be restored, or the full value paid.
The Juffbow Rachel, 8th February, 1761 ; the same.
The Resolxjttie, 23rd June, 1761 ; the same.
The Sea Nymph, 23rd June, 1761 ; the same.
The D. and Apollonio, 27th June, 1761 ; the same.
The Prins Willem, 27th June, 1761 ; the same.
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206 PRIZE CASES.
THE ELIZABETH.
A ship was bought of the French at Guadaloupe by a Dutch
mibject ; sent thence to Eustatia in ballast ; there loaded by
Dutch subjects with sugar, &C.9 part shipped from the shore, the
rest taken out of barques, one of which came from Guadaloupe.
M^ith this cargo the ship was taken by two English privateeis in
her voyage to Amsterdam.
12th December, 1758. — The Judge of the Admiralty pro-
nounced just cause of seizure and condemned the claimant in
expenses, but decreed the ship to be restored to claimant,
assigned them to specify the parts of the cargo which were taken
from the shore.
24th February, 1759. — Claimants oflTering no specification,
condemned the cargo as lawfnll Prize.
24th March, 1760. — The Lords of Appeal reversed the decree
of the Judge below, condemning claimants in expenses, and after-
wards condemning the cargo and pronounced the goods to belong
as claimed, and decreed the same to be restored.
THE CONSTANTIA^
A Danish ship sailed from Christiania, in Norway, with deals,
delivered them at Kinsale ; thence proceeded in ballast to Cork,
T^here the captain entered into charterparty with James and
Paul Benson, British subjects, to carry a cargo of beef, &c., to
Eustatia, and in return take in a cargo of sugar, &c., for Eotter-
diim. Arrived at Eustatia, sold the outward cargo, took in sugar,
coffee, cotton, from barques in return ; two sets of Bills of Lading
^ ere signed by the master, the first in Dutch, acknowledging to
have received the cargo of Jan De Windt, Governor of Eustatia,
and thereby promising to deliver it at Botterdam to Herman
Ysaendoen; the other in English, acknowledging to have re-
ceived the same of Messrs. Creagh and others, resident at
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WEST INDIA PKODUCK 209
Enstatia, for account and risque as per invoice^ to be delivered at The
Rotterdam to Yssendoen, and an invoice of the lading signed by
De Windt as the property of Yssendoen. The ship sailed from
Enstatia in December, 1757 (her two bills of lading being for-
warded to the owners by other conveyances) ; was taken by an
English privateer ; a claim was given by the master for a Danish
subject, as the proprietor of the ship, and for the cargo on behalf
of divers subjects of the States general and other neutral subjects.
A claim was afterwards given by James Benson for himself and
others, merchants in Ireland, for 76 hogsheads of brown sugar,
276 hogsheads of white, 326 bags of coffee, and other things, to
which claim was annexed an affidavit, with what claimant alleged
to be the true invoices and bills of lading for said cargo.
17th August, 1758. — The Judge of the Admiralty rejected the
claims given by Benson, condemned the goods as lawfuU Prize,
restored the ship with freight ; the master acquiesced under this
sentence ; took his ship and freight, and none of the claimants
in his claim appealed. Benson and other English subjects
appealed from so much of the sentence as rejected their claim
and condemned the goods by them claimed.
13th March, 1760. — Before the Lords, the respondent objected
that the affidavits and papers annexed to the claim ought not to
be read, nor the claim received. The Lords directed that the
claim with the papers annexed be reetd, and affirmed the sentence
of the Judge below, condemning the cargo as liable to confis-
cation.
A Dutch captain went from Eustatia to Guadaloupe; there
purchased a ship taken from the English, loaded her with sugar,
&c., purchased there, and sailed from thence with a Dutch pass,
obtained from the Governor of Eustatia, and a Dutch and neutral
crew, cleared for Eustatia. 29th May, 1757, she was taken by an
English privateer, and carried to Ehode Island and proceeded
against in Vice- Admiralty as Prize, where ship and cargo were
restored to the claimants. The captors appealed. The ship and
cargo were delivered to the claimant on security, with which she
sailed to Eustatia. There, having signed other bills of lading
for that part of the goods taken in at Guadaloupe which then
remained (part having been sold at Rhode Island to pay his
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210 PRIZE CASES.
The expenses there) and taken on board other goods at Eustatia,
<.oNSTANTu, ^^Yed. completely laden for Holland, and on that voyage, 7th
June, 1758, was taken by an English privateer.
26th September, 1758. — The Judge of the Admiralty assigned
the claimant to distinguish the parts of the cargo which were
taken from the shore of Eustatia ; took time to deliberate whether
said Court could take cognizance of the ship and goods adjudged
by the Vice- Admiralty of Rhode Island to be restored. Claimants
oflfering no specification, 24th February, 1759, the Judge of the
Admiralty condemned ship and cargo.
24th March, 1760. — On appeal, objection having been made by
the appellants to respondents being allowed to go into any matter
previous to the sentence of the Vice- Admiralty Court at Rhode
Island, as a ground for condemning in this cause the ship and
cargo (from which sentence an appeal is now depending before
the Court), and the Lords having heard counsel thereon, ordered
that respondents should not be allowed to go into any evidence
of facts previous to such sentence, and as to the part of the
present cargo which was taken in after said sentence, pronounced
that it appears by the evidence to be Dutch property, reversed
the decree of the Judge below and decreed the ship and cargo to
be restored.
THE AMERICA.
A Dutch ship was chartered at Amsterdam to carry a cargo of
provisions to Port-au-Prince, a French port in Hispaniola, there
to take on board sugar, the produce of that colony, and bring it
back to Amsterdam. This charterparty was left at Amsterdam,
and the ship cleared out at Eustatia, but with orders to the
master to go to Port-au-Prince. She arrived at Port-au-Prince
15th July, 1756, and obtained leave from the French Governor
to sell the cargo and employ the produce in commodities of the
colony. Before the license was granted the ship was surveyed, as
French ships usually are. After the cargo, &c., of sugar was put
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WEST INDIES, PBENCH SETTLEMENTS. 211
on board, the ship was detained several months before the Gover- The
^MEBIOA
nor would permit her to sail. On being chased by an English
ship, the Dutch captain threw overboard his true instructions and
many French letters. The Judge of the Admiralty condemned
and cargo.
17th April, 1759. — The Lords affirmed that sentence. The
ship in question having been freighted on French account and
employed on a voyage to a French settlement, and having de-
livered her outward cargo by allowance of the French Governor
there, and her homeward cargo having been put on board after a
survey subject to the ordinances and to the payment of duties
according to the laws of France, and the master having thrown
overboard the Bills of Lading and other ship papers, -and the
cargo on board when taken being admitted to be the property of
French subjects.
The Db Snep (?), 20th December, 1759 ; decreed to the same
purpose.
THE JUFFROW MARIA.
6th March, 1760. — And on the extraordinary circumstances of
that case condemned the appellant in costs from the time of his
giving in the claim in the first instance. Monition against the
respective Bails to pay said costs in fifteen days after service to
the amount of the sums they are respectively bounden.
Deb Ahstel, 20th March, 1760 ; decreed to the same purpose.
r 2
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212 PBIZE CASES.
THE MAEIA; THE AGNES.
A Dutch ship sailed from Amsterdam with a cargo of provi-
sions, cleared out for Curacoa, but with verbal directions to go to
Port-au-Prince or Leogane if he could get permission to trade
there. Accordingly sailed to Leogane, and, with permission of
the French Governor, sold the outward cargo and took in a cargo
of sugar, with which was taken on her return to Amsterdam.
The Judge of the Admiralty in Ireland condemned ship and
goods, and condemned claimants in expenses and costs. 26th
]\[arch, 1760, the Lords reversed so much of the decree as con-
demned claimants in costs and expenses, and otherwise a£Srmed
the same.
The Veow Claba, 2nd June, 1760 ; to the same purpose.
The Magdalena, 2nd June, 1760 ; to the same purpose.
The Veyheidt, 12th June, 1760 ; to the same purpose.
The Johana Mabia, 3rd June, 1760; to the same purpose,
except reversing that part of the sentence which condemned
claimant in expenses.
The Maria Johanna, 12th June, 1760 ; to the same purpose.
The Peter and John, 19th June, 1760 ; to the same purpose.
The Gloegande Stor, 8th July, 1760 ; to the same purpose.
The Isaac, 9th July, 1760 ; to the same purpose, but reversing
I'ondemnation of claimant in double costs.
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WEST INDIES, PBENCH SETTLEMENTS. 213
THE EESOLUTIE.
A Dutch ship entered into a charter-party to sail in ballast to
Botirdeanx, there to take in a lading and carry it to Curacoa,
there to nnlade, take in a homeward boand cargo on account and
risque of the freighters, who were Dutch subjects, and bring it
back to Amsterdam. Under this charter-party the master sailed to
Bourdeaux ; there took in wine, flour, and other things, and on his
voyage to the West Indies was seized by an English Privateer.
The master swore the voyage was agreeable to his charter-party,
bnt the clerk said the ship was bound directly to St. Domingo
and discovered conceded papers, which were the true charter-
party for the voyage from Amsterdam to Bourdeaux, thence to
St. Domingo with a cargo of provisions and other merchandise
proper for the use of the inhabitants, on condition that he should
pay in France the duties due to the French King's Western
Domain for said merchandise, with other French papers. 17th
August, 1758, the Judge of the Admiralty pronounced that said
ship and goods ought to be presumed to belong to enemies, or to
be otherwise confiscable, and condemned the same as lawfull
Prize.
20th March, 1760. — The Lords affirmed the sentence.
The Hoop, 8rd June, 1760 ; decreed to the same purpose.
THE VEYHEIDT.
A Dutch master having obtained a passport from the Governor
of Eostatia, went with some mariners to Guadedoupe, there took
possession of a ship which had been taken from the English and
condemned to the French as Prize of war at Guadaloupe ; was
taken on his return to Eustatia with the ship and no other cargo
except some beans, carried into Antigua, where ship and cargo
was condemned to the captor as the property of enemies ; which
sentence, 12th June, 1760, the Lords affirmed.
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214 PBIZE GASES.
THE ELIZABETH, Galley.
A Buteb ship bound from Amsterdam to Curacoa was driyen
out of her course, taken on the coast of Hispaniola, the master
being then making for Cape Francois for wood and water; was
e^rried into New York, where ship and cargo was condemned,
12tb June, 1760; which sentence the Lords reversed, and decreed
them to be restored to the claimant.
THE DAGERAED.
A Dutch ship taken off the island of Hispaniola, cleared out in
Hiilland for Curacoa, but having on board the French King's
licence to trade in St. Domingo, was condemned with her cargo
at Kew York ; which sentence was affirmed by the Lords, 19th
June, 1760.
The Juffbow Alida, 9th July, 1760; decreed to the same
purpose.
The Vnow Anna, 9th July, 1760 ; decreed to the same pur-
pose.
The Akn and Elizabeth, 8th July, 1760 ; decreed to the same
purposep
THE ANNA; THE MAEGARET A, Galley.
A Dutch ship was freighted to carry a cargo from Rotterdam
to Cadiz, to be delivered there to the Dutch consul, thence to
go to Marseilles, there to take in another cargo, and afterwards
follow said Dutch consul's orders. The cargo was delivered at
Cadiz, from whence the ship sailed to Marseilles in ballast, where
a cargo of wine and other goods were put on board, for which the
master signed a Bill of Lading to be delivered to the Dutch consul
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WEST INDIES, FRENCH SETTLEMENTS. 215
at Cadiz. Sailed from Marseilles for Cadiz, and on the voyage The Anna ;
was taken by two English Privateers and carried into Gibraltar. Marqareta.
Depositions of the master, others of the crew were taken, who
swore the ship and cargo were Dntch property, but some of them
said they heard at Marseilles the ship was bound for Martinico.
The captors also examined several English who had been lately
prisoners at Marseilles. They swore they heard from several
persons at Marseilles that the ship in question was to go with a
loading to Martinico on account of the French. The captors also
examined merchants at Gibraltar, who swore they did not believe
the Dutch could purchase a cargo at Marseilles to carry to their
own West Indian Colonies. The Judge of the Admiralty at
Gibraltar condemned ship and cargo. 8th July, 1760, the Lords
reversed the sentence, and decreed ship and cargo to be restored.
NetUral ships condemned where proved to have been botmd to French
ports in the West Indies : —
The Santa Maria, 10th July, 1760 ; the Lords reversing that
part of the sentence which condemned claimants in double costs.
Thb Rebecca, 5th July, 1761.
The Victoria, 27th July, 1761 ; but ordered claimants' bond
to be delivered up.
The Europa, 16th March, 1762.
The Friendship, 13th July, 1762 ; reversing, double costs.
The Saikt Croix, Packet, 13th July, 1762; reversing, double
costs.
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JJlfl PBIZE CASES.
Neutral ships restored when proved to have been bound to French
ports in the West Indies : —
THE GOOD CHRISTIAN.
A Danish ship was taken in her voyage from St. Croix to
Bt, Domingo ; had on board a Dutch pass for trade amongst all
the West India islands ; a Bill of Lading expressing the voyage
to be to St. Domingo and that the goods are on account and risk
nf a Danish subject ; a clearance at St. Croix for Cape Francois.
The master and mariners said they were bound to St. Domingo or
Cape Francois, where the cargo was to be sold to any person that
woidd buy it. The ship was carried to North Carolina and pro-
ceeded against as Prize. Claim was given for ship and cargo as
the property of Danish subjects.
20th December, 1760. — The Judge condemned both as Prizes,
ordering claimant to pay costs pursuant to stipulation. The
liords declared that on all the evidences and circumstances of the
case they are of opinion there is not sufficient ground to presume
that the voyage in which the ship Good Christian was taken was
allowed by the French King or his officers, or undertaken on any
assurance, agreement, or authoritative intimation that the ship
would be received at Cape Francois on the foot of a French ship
or treated in such a manner as only French ships have a right to
be treated in time of peace.
DE JONGE ISAAC.
A Dutch ship going into Cape Francois, in the island of
Hispaniola, was taken by two English men-of-war. She had
Bailed from Eotterdam to the coast of Africa and there purchased
500 slaves, with which she sailed to Surinam, there sold 200, and
the master was carrying the rest to Cape Francois for a market at
the time he was taken. This account was given by the master
and mariners on their examinations ; there was no permit to trade
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WEST INDIES, FRENCH SETTLEMENTS. 217
with the French on board, nor any order from the owners to the Db Jongb
master to go to any French port, but in general to go to Surinam
and there dispose of the slaves, or where else he could do it to
greater advantage. The ship was carried into Jamaica, where
the Judge of the Vice- Admiralty condemned the negroes and the
rest of the cargo to the captors, but restored the ship to the Dutch
claimant.
12th Mar(5h, 1763. — On appeal by both parties, the Lords re-
versed that part of the sentence which condemned the cargo, and
pronounced as well the ship and cargo to belong as claimed, and
decreed the same to be restored, or the value thereof paid to the
claimant.
THE HOPE.
A Dutch ship fitted out from Eustatia with a cargo for Monte
Christi, was taken thirty leagues to leeward of Monte Christi,
making for St. Marks, a French port in Hispaniola. The master
and mariners swore they were driven out of their course by bad
weather; that they would have gone into St. Marks to repair,
being the nearest port, but would not have sold more of their
cargo than was necessary to bear their expenses, nor have pur-
chased anything in return of the French. The Judge of the Vice-
Admiralty of Jamaica decreed ship and cargo to be restored to
claimants.
1st May, 1764. — On appeal, the Lords affirmed the sentence,
and decreed the cause to be remitted.
Neuiral ships coming with cargoes from French ports in the West
Indies restored : —
NOTEE DAME DE LA EOSA,
A Spanish ship was taken, 16th December, 1756, in her voyage
from Leogan, a French port in Hispaniola, to Carthagena with a
cargo of sugar. She had last sailed from Carolina, and, whilst
there, war was declared between England and Spain. There was
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gig PBIZE GASES.
Notiik Dame an board a French permit from the officer at Leogane settmg
DE LA u^A. ^^^^ ^^ ^^^^ ^^^ captain of the Spanish barque Notre Dame de la
Bosa had declared he had left the amount of his former cargo and
l>rayed permission to load the amount in sugar, on condition that
said lading shcdl not give room to any other commerce on pain of
confiscation of ship and cargo." The captain of the privateer set
all the crew on shore in Hispaniola except the captain, and carried
ship and cargo to Jamaica, where he proceeded against them as
Priae.
28th February, 1757.— The Judge of the Vice-Admiralty at
Jamaica restored the ship to the claimant, but condemned the
cargo.
20th December, 1760. — On appeal, the Lords reversed the
decree condemning the cargo, pronoimced 'same to belong as
claimed, and decreed the same to be restored or the full value
thereof paid to the claimant.
THE JOHANNA MARGEETTA.
A Danish ship laden with provisions sailed from Aalberg bound
for the Danish islands St. Thomas and St. Croix, as the super-
cargo should think most for the owner's advantage. She was
seized by a French privateer and carried into Martinico, and there
proceeded against in the Admiralty Court as Prize, where, on
proof from the ship papers and depositions of the captain and
others on board that they were Danish property boimd to Danish
Islands, ship and cargo was restored to the master, who, preparing
to depart, was ordered to sell his cargo in Martinico to supply the
necessities of the inhabitants of that island. In obedience to that
orderj the master sold his cargo there to the French, and in return
purchased a cargo of sugar and coflTee for accoimt and risk of his
owners, with which was returning to Aalberg, but being obliged
%Q put into Dover, 12th November, 1759, was seized in the port as
Frize. The master gave a claim for ship and cargo as the pro-
perty of Danish subjects. The above facts were fully proved by
the depositions of the master and mariners. Proceedings in
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WEST INDIES, FBENCH SETTLEMENTS. 219
the Coxat of Admiralty at Martinico and other papers found on The Johakna
board. Marobbtta.
3rd June, 1760. — ^The Judge of the Admiralty decreed the ship
to be restored, but pronounced the goods to belong to enemies or
to be otherwise liable to confiscation, and condemned them to the
captors.
5th March, 1761. — The Lords aflSrmed that part of the decree
of the Judge below which restored the ship, but reversed that part
which condemned the cargo, and pronounced the cargo to belong
as claimed, and decreed the same to be restored.
Neutral ships condemned coming with cargoes from French ports in
the West Indies : —
The Gebigtigheit, 10th July, 1760.
The Petronella and Elizabeth, 10th July, 1760.
The Speedwell, 10th July, 1760, reversing that part of the
sentence which condemned claimant in double costs.
The St. Mabcus, 14th July, 1760.
The St. Fernando, 14th July, 1760, reversing that part of
the sentence which condemned claimant in double costs.
The Zeelandia, 14th July, 1760.
The Kouingsbers, 14th July, 1760.
The Esther, 14th July, 1760.
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2S& PRIZE GASES.
The Nassau, 15th July, 1760, only reversing condemnation of
cUdmant in double costs.
The Spa Galley, 15th July, 1760, reversing condemnation of
claimant in costs.
The Stadt Eotterdam, 15th July, 1760, reversing costs.
The Johannes, 15th July, 1760, reversing costs.
The 8now Eotteedam, 27th November, 1760.
THE DE VICTOR.
19tli December, 1760, Altham, on behedf of his client, declared
he would proceed no further in his appeal, and both Proctors
waived all assignations. The Lords, on the part of Respon-
denta, affirmed the sentence condemning ship and cargo, but
ordered claimant's bond to be delivered up.
The Yrebde, 5th March, 1761.
The Vrvhyd, 5th March, 1761.
The Pss. Carolina, 14th March, 1761.
The St- Nicolas, 23rd June, 1761, reversing condemnation of
claimant in double costs.
The Salt Pond, 23rd June, 1761, the Lords ordered claimant's
bond to be given up at petition of his proctor.
The Hope, 23rd June, 1761, reversing condemnation of claimant
ill double coafe
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WEST INDIES, FRENCH SETTLEMENTS. 221
The Immaculatis Conception, 23rd June, 1761. N.B., A
Roman vessel, sailed under Boman colors, and with a Boman
pass.
The Phcenix, 13th July, 1762.
The Abchibald, Ist May, 1764.
The Adbian Galley, Ist May, 1764.
The Young Moses, 15th July, 1764.
The Queen of Bohemia, 15th July, 1765.
THE ST. JUAN DE POMESINA.
A Spanish ship loaded with sugar was taken coming from
Port-au-Prince. On board was a commission to the master from
the Spanish governor of Hispaniola, directing him to go in quality
of a flag of truce to the neighbouring islands in search of some
ships and cargoes belonging to the Eoyal Company of Barcelona,
which had been fraudulently carried away from Hispaniola, but
directing that he make the said voyage empty and without any
cargo. The Spanish master swore he went to Port-au-Prince;
that he instituted a suit against these merchants to recover them,
which he obtained, but they being unable to pay him the value
in money, he was obliged to take it in sugar, which was the cargo
on board at the time of the capture. The Judge of the Yice-
Admiralty at Jamaica restored ship and cargo to the claimant on
this evidence.
Ist May, 1764. — On appeal, the Lords reversed the sentence,
pronounced ship and cargo to be liable to confiscation, and con-
demned the same to the captors.
The Nra. Senba. del Eosabio, 1st May, 1764 ; to the same
purpose.
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W& FBIZE CASES.
The Nea. Senra. de los Dolores, 1st May, 1764.
The Avanturior, 1st May, 1764, reversing double costs.
THE JTJFFEOW ANNA.
A Dutch ship was taken with a cargo of sugar coming from
rort-au-Prince. The Judge of the Vice-Admiralty at Jamaica
condemned the ship and general cargo, but restored the priyate
adventures, amoimting in value to one-third of the whole lading.
Igt May, 1764. — On appeal, the Lords reversed that part of the
Bontence which restored the private adventures, and condemned
the ship and whole cargo to the captors.
The Sloop Carmen, 28th July, 1764.
Ships and cargoes coming from Neutral West India Islands,
restored : —
THE CHRISTOPHILUS.
A Dutch ship coming with a cargo of sugar, coffee, cotton, and
tobacco from the Danish island of St. Croix, was taken, 10th
October, 1758, by the BesoltUion, Privateer, and carried into
Baltimore in Ireland, where ship and cargo were soon after driven
upon a rock and lost, no step being taken by the captor to
bring the ship to adjudication. The Judge of the Admiralty
pronoimced just cause of seizure, that the ship belonged as claimed,
but that the property of the cargo was doubtfoll, and assigned
claimants to plead and prove within two months.
14th March, 1761. — On appeal, the Lords reversed that part of
the decree pronouncing just cause of seizure; pronounced the
Bhip as well as the whole cargo to belong as claimed, and decreed
the ^ alue of the ship and cargo to be paid to claimants.
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WEST INDIES, NEUTBAL ISLANDS. 223
THE HELENA, Galley.
A Dutch ship coming from Eustatia to Amsterdam, with a
lading of sugar, &c., was taken and carried into Cork. The bills
of lading did not mention on whose account and risque the cargo
was, which the witnesses declared themselves ignorant of. It
appeared they had carried two Frenchmen with them from Europe,
and that great part of their outward bound cargo was imme- "^
diatelj put on board ships and sent to the French islands, from
whence great part of the cargo which was on board was brought.
The Judge of the Admiralty in Ireland condemned ship and
cargo.
14th March, 1761. — On appeal, the Lords reversed the decree
condemning ship and cargo ; pronounced the ship to belong as
cldmed, and decreed same to be restored ; but the property of
the cargo appearing doubtful], assigned same to be pleaded and
proved within a month.
THE DON PEDRO.
A Dutch ship, having obtained a license from the Governor of
St Eustacia to trade to all free and permitted places in the West
Indies, was loaded by Dutch subjects at Eustatia with flour, wine,
oyl, and soap, with which cargo she was cleared out at Eustatia
for Monte Christi to a Spanish port in the Island of Hispaniola.
2nd February, 1759, arrived there and obtained leave of the
Lieut.-Govemor to dispose of his outward-bound cargo ; of which
leave he had a certificate given him from the Governor, in which
it is declared that he had been enjoined and ordered not on any
pretence to sell or purchase of any person except the neighbours
and inhabitants of Monte Christi. The cargo purchased con-
sisted of 72 barrels of sugar, some tobacco and hides, with which
the ship was returning to Eustatia, when she was taken by the
George^ Privateer, and carried into Savannah in Georgia, where
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224 PKIZE CASES.
Tete Dok ehe was proceeded agcdnst as Prize. The master in his examina-
tion said that he, with other Dutch subjects, were the sole owners
of ship and cargo ; that he disposed of his cargo to the Spaniards
at Monte Christi, in particular to the Governor and his secretary,
and the remainder to sundry persons for ready cash. That he
took a cargo on board at Monte Christi of tobacco, hides, and
sugar (N.B. There was no invoice for the tobacco and hides),
but does not know what produce it is; don't know that the
Spaniards plant sugar at Monte Christi; purchased the major
part of the sugar from Josh. Eicardo, a Spaniard ; received it from
on board a Spanish schooner, but did not see her till 6 or 7
weeks after his arrival ; paid duty at Monte Christi ; employed
no person to go to any of the French territories to purchase sugar
for him. Hubbard, chief mate, don't know whence the schooner
came from which they took the sugar, but a Spaniard on board
said she came from St. Dauphin. A claim was given for ship and
cargo by Hand, the master, as the property of himseK and other
Dutch subjects.
30th May, 1759. — The Judge of the Vice- Admiralty in Georgia
condemned ship and cargo as lawfull Prize.
24th March, 1761. — The Lords reversed said sentence; pro-
nounced ship and goods to belong as claimed, and decreed same
io be restored or the full value thereof to be paid to the claimants.
THE CHARMING POLLY.
The property of British merchants, sailed from New York with
a cargo of linnens, beer, cyder, and cash ; cleared out for Jamaica,
but sailed for Monte Christi ; there took in a cargo of white sugar
and sailed therewith to Leghorn, but in the way put into Gib-
raltar, where was seized by an English man-of-war and proceeded
against as Prize. A claim was given by the master for the ship
and cargo as the property of Stillwell and others, merchants at
Kew York ; the master in his deposition said the cargo was pur-
chased at Monte Christi by Gill, a factor for the owners of the
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WEST INDIES, NEUTRAL ISLANDS. 225
ship, and cargo established there ; was brought on board by The
Spanish vessels ; did not know of what produce it was. On board pollt.
was a certificate from the Lieutenant-Grovemor of Monte Christi
that the cargo had been bought in that city from several inhabi-
tants thereof, and was the effects of Spaniards and of no other
nation.
22nd July, 1760.— The Judge of the Vice- Admiralty at Gib-
raltar pronounced that ship and goods did at the capture belong
to the French King or his subjects, and condemned them as law-
full Prize.
27th July, 1761. — The Lords reversed said sentence, pro-
nounced ship and cargo to belong as claimed, and decreed them
to be restored, or the full value thereof, to the claimants.
The Gbegg, 27th July, 1761; to the same purpose. N.B.
Cleared out at New York for South Carolina and Jamaica.
The Sharp, 27th July, 1761 ; to the same purpose.
The Penguin, 16th March, 1762 ; to the same purpose.
The Faib Lady, 16th March, 1762 ; to the same purpose.
The Fortunatus, 13th July, 1762; to the same purpose.
N.B. Cleared out at Boston generally for the West Indies. The
master deposed that his cargo (of sugar and molasses) was put on
board him by the Spaniards in boats and small craft without
being landed at Monte Christi to his knowledge ; believed his
present cargo the produce of the French settlements and pur-
chased by the Spaniards at Monte Christi from the French.
The Betsy, 13th July, 1762 ; to the same purpose.
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22iJ PRIZE CASES.
THE SALLUY.
13 til July, 1762, to the same purpose. N.B. The master
deposed that he believed at least two-thirds of the sugars and
other merchandise brought to the port of Monte Christi in
small craft or other vessels for sale are the produce of the French
lands in Hispaniola, and are so brought there only for sale, as
persons inclinable to purchase usually go on board the small
craft to bargain for them without their being l^ded first at
Monte Christi.
The Defiance, 13th July, 1762 ; to the same purpose.
The Dolly, 13th July, 1762 ; to the same purpose.
The Quebec, 17th December, 1762 ; to the same purpose.
Wmsk Pbiendship, 5th March, 1763 ; to the same purpose.
The London, 5th March, 1763 ; to the same purpose.
The Becoveby, 5th March, 1763 ; to the same purpose.
The Stadt Flansburg, 5th March, 1763 ; to the same pur-
pose*
The General Johnson, 5th March, 1763 ; to the same piu>
pose.
The Jenny, 5th March, 1763 ; to the same purpose.
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WEST INDIES, NEUTRAL ISLANDS. 227
THE SEA FLOWER.
A British ship sailed from New York to Monte Christi, where
the outward cargo was sold by the master and supercargo to
Spanish merchants, and the principal part of the returned cargo
purchased of thenu The master being asked whether the super-
cargo was at St Dauphin during the ship's stay at Monte Christi
refused to answer; the other witnesses said thej believed the
supercargo did go to St. Dauphin. The master said that during
his stay at Monte Christi he received several letters from Cape
Francois, but not relating to said brig or her cargo, and being of
no consequence he destroyed them before he left Monte Christi.
This ship was taken in her voyage firom Monte Christi to Ham-
burg and carried into Jamaica, where the cargo was condemned
but the ship released.
1st May, 1764. — On appeal, the Lords a£Srmed that part of the
decree which restored the ship, but reversed that part which
condemned the cargo and pronounced the cargo to belong as
claimed, and decreed ship and cargo to be restored or the value
thereof paid to the claimant.
The Adventure, 1st May, 1764 ; to the same purpose. N.B.
There were 42 hogsheads of sugar on board, but the Governor of
Honte Christi's certificate was only for 12 hogsheads.
The Thubloe, 1st May, 1764 ; to the same purpose.
The Fanny, 1st May, 1764 ; to the same purpose.
The Pitt, 1st May, 1764 ; to the same purpose.
The Oliver Cbomwell, 28th July, 1764 ; to the same purpose;
The Industry, 8th July, 1766 ; to the same purpose.
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228 PRIZE CASES.
Ships cormngfrom Monte Christi condemned.
THE AFRICA.
A British ship sailed from New London in North America to
Barbados, with a cargo of provisions and lumber, which she there
unladed and took on board 10 negro slaves and £700 Barbados
currency in cash, with which cleared for Guadaloupe, but sailed
to Monte Christi, where she arrived in February, 1760, and in
bar return was taken by an English man-of-war. The master in
in his deposition said there was laden on board his ship at Monte
Christi 170 or 180 hogsheads of molasses, and there was on board
his ship when he sailed from Barbados several empty casks for
molasses, which were put on board two sloops at Monte Christi,
which sailed thence for some French port, as he believes, when
they were filled with molasses, and brought back to Monte Christi
and received on board said ship. There was a receipt signed by
Francisco Solano, said to be an inhabitant of Monte Christi,
acknowledging the captain had paid him the amount of 140 casks
of molasses which he had bought of him there ; also a certificate
from the Governor that said molasses had been bought by the
captain of inhabitants of Monte Christi. A claim was given for
f^hip and cargo as the property of a British subject in North
America. The Judge of the Vice-Admiralty at Jamaica con-
demned ship and cargo as Prize.
13th July, 1762.— On appeal, the Lords afiirmed the sentence
fit the Judge below, and decreed the cause to be remitted.
THE ST. CROIX.
The St. Croix, laden with sugar, was taken on her voyage from
J^Ionte Christi by an English privateer, and carried into New
Providence. Claim was given by the master for ship and cargo
as property of subjects of the King of Denmark resident at
St. Croix. The witnesses examined said that the ship sailed from
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WEST INDIES-SHIPS FROM MONTE CHRISTI. 229
St Croix, cleared out for Monte Christi ; that Bodkin, one of the The
owners of ship and cargo, arrived at Monte Christi a few days ^' "^^
after; that they brought about 180 negroes from St Croix;
about 10 were sold at Monte Christi, the rest were sent to Cape
Francois with part of the outward cargo, consisting of beer, wine,
and dry goods. That Bodkin went with the slaves and cargo to
Cape Francois and there employed a Frenchman to dispose of
them, to whom he paid 7 per cent, on the sale whilst the ship lay
at Monte Christi. She took in her present cargo at Monte
Christi, consisting of 490 hogsheads of sugar, which came out of
barques which brought them from Cape Francois, which the
witnesses believed the return for the cargo sent thither. There
was on board a certificate from the Governor of Monte Christi,
that the cargo was bought from inhabitants of that city.
13th April, 1761.— The Judge of the Vice-Admiralty at New
Providence condemned ship and cargo to the captor.
5th March, 1763. — On appeal, the Lords affirmed the sentence,
and decreed the cause to be remitted.
The Van Bernstof, 9th July, 1763 ; to the same purpose.
The Kingston, 9th July, 1763 ; to the same purpose.
The Eanoer, 9th July, 1763 ; to the same purpose.
The Sea Nymph, 9th July, 1763 ; to the same purpose.
The Adventure, 15th July, 1765 ; to the same purpose.
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EXTRACTS
FROM THE RECX)RDS OF THE
HIGH COUKT OF ADMIRALTY
AND
THE COURT OF THE JUDGES DELEGATES.
Thr records of the High Court of Admiralty and of the CJourt of the Judges
Delegates, from which the following extracts are for the most part taken, consist
of :— (1.) Assignation Books of the Admiralty Ck>urt. This series, extending
from the year 1677 to 1767, contains the Registrar's Notes of all proceedings
in the Admiralty Ck>urt. — (2.) The Act Books of the Admiralty Court. This
series of large folios, bound in vellum, extends, with breaks, from 1524 to 1744.
It contains formal entries of the Acts (Decrees, &c.) of the Court. — (3.) Assig-
nation Books of the Court of the Judges Delegates, the Court of Appeal from the
Admiralty previously to the institution of the Judicial Committee of the Privy
Council in 1834. The series extends from 1538 to 1834. — (4.) Delegates' Act
Books. This series extends from 1538 to 1684, with breaks. — (5.) Delegates'
Process Books. This series extends from 1619 to 1834. The Processes are
complete statements of all proceedings (pleadings, evidence, decrees, sentences,
&c.) in the Court below. They are in a good state of preservation and have
recently been bound in volumes. This series is a valuable record of the pro-
ceedings of the Admiralty and Ecclesiastical Courts, and contains the only
record of the formal sentences of the Admiralty Court which the present
writer has hitherto been able to discover. — (6.) Delegates' Sentences. These
sentences are engrossed upon parchment. They begin in 1585, but the series
is incomplete. Many of the sentences are in a bad state of preservation, and
the entire series in a state of great confusion. — (7.) Miscellaneous papers,
oyer et terminer records, and other documents not indexed, and in a state of
confusion.
Previously to 1733 the proceedings and records are in Latin, with the excep-
tion of the years of the Commonwealth, during which the records are for the
most part in English. The restoration of the Latin language to Doctors'
Conmions in 1660 appears to have been hailed with almost as much joy as that
of the monarchy; see below, p. 643.
JURISDICTION OP THE HIGH COURT OF ADMIRALTF. 1584
Copy of a letter irom Queen Elizabeth to the Chief Justice of England with
reference to the jurisdiction and business of the Admiralty Court. (Record
Office.)
After my hartie commendations to your Lordship and tlie rest :
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^ KECORBS-HIGH COURT OF ADMIRALTY.
I&84 Whereas there hath been and yet is depending in the Conrt of
the Admiralty matter between one Percie, of Norfolke, and a
certaine Portingall, wherein the said Percie sueth to the Court
of her Majesty's Bench for a Prohibition against the said Portin-
gall or his Attornie for that this cause is said to be determined
] properly by the civill law and in the Admiraltie, Her Majesty's
pleasure is and soe hath her Highness willed me to signify unto
ycm that your Lordship and the rest of your associate Judges of
the said Court have a speciall care not only in this matter of
Percie and the (aic) Portingall, but in all other like matters con-
cerning the Admiraltie, that the same being triable by mere civill
la we be not admitted to triall before you at the Common Law,
which of these marine and forraine causes is thought not soe
properly and aptly to take knowledge ; and therefore that here-
ati'ter (unlesse the matter shall appeare soe manifestly to be triable
\>y the common lawe as that you may and will soe warrant it)
that you would remit the same to the ordinarie place of the
Admiraltie, the credit of which Court for many good respects her
Majestie would have by all good meanes preserved ; And soe I
recommend your Lordship and the rest most heartily to God ;
from the Court the vinth of July, 1684.
Tour Lordship's assured loving friend,
Fra. Walsingham.
(Indorsed) — To my very good Lord, my Lord Chief Justice of
England, and the rest of the Judges of the King's Bench.
%&&$ ^py of a letter upon the same subject from Queen Elizabeth to the Mayor
— and Sheriflfs of London. (Record Office.)
Right trusty, &c. Whereas (?) wee are given to understand by
OUT right trustie, &c., Charles, Earl of Notingham, our high
Admirall, that you take upon you to heare and determine all
I manner of causes and suites arising of contracts and other things
w bappeniug as well upon as beyond the seas by attachments or
otherwise, the knowledge whereof doth properly and specially
*• belong and appertaine unto our Court of Admiraltie, fayning the
sume contrary to the truth, to have been done within some parish
i
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COURT OF DELEGATEa 233
or woarde of that our citie of London ; like as wee think it very 1598
strange that by such untrue surmises the prerogative and juris- '
diction of our said Court of Admiralty should be usurped by you,
and our said Admirall and his Lieutenant defrauded of that
which is due unto them ; soe wee thought it meete straightly to
charge and command you to forbeare to intermeddle with any
matter, cause or suite proceeding of any contract or other thing
happening upon or beyond the seas, or in any other place within
the jurisdiction of the Admiralty. And if it shall happen any
such cause or matter to be commenced before you by any coun-
sellor or attorney without your knowledge, wee require you, when
you shall know thereof by yourself or "upon advertisement had by
our said Admirall or from his Lieutenant to desist to proceed
therein further. And hereof faile you not as you and every of
you tender our pleasure (sic). Given, &c., at Greenwich, the
16th day of May, 1598. Anno regni Reginae 40.
A letter in almost the same terms, dated 19th October, 1604, was sent to
the Lord Mayor and Sheriflfs of the City of London by King James L A copy,
endorsed by the Registrar of the Admiralty as having been delivered by him
in the council chamber of the City of London, is amongst the Admiralty Court
papers at the Record Office.
CEIMINAL JUEISDICTION. 1585
Oyer et Terminer Records. Warrant or precept to Sheriff of Surrey to
summon jurymen for trial of offences committed within the jurisdiction of the
Admiralty.
CAROLUS DOMINUS HOWARD BARO DE EFFING-
HAM, prsedari ordinis garterii miles, magnus Admirallus Anglise
Hibemise et Wallise ac dominiorum et insnlarum eorumdem
Till . . . Calesise (?)... et .. . ejusdem Norman Gascon et
Aqnitaine classisqne et mariu . . « dictorum regnomm Angliae
et Hibemise praefectus generalis ac socii sni Jnsticiarii Serenis-
aimae Dominae nostrse Reginas snprem& (?) Admiral'®. Anglise
ad onmia et singula, prcedones (?), felonias, roberias, farta,
mnrdra, homicidia, confederationes, delicta piratica, spoliatores,
depredationes, injuria, maleficia, transgressiones, riotas, routas(«tc).
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234 RECORDS— HIGH COURT OF ADMIRALTY.
15S5 conyenticula illicitae exter . . . (?), ac alia offensa et delicta
qnsBcnnque ; tarn in aut super mari vel publico flumine rivi
Themesis citra pontem civitatis (?) London versus mare qaam
super littus maris ubicunque locorum infra jurisdictionem
maritimam et limites jurisdictionis admiraL Angliae prsadict
yel alibi in aut super fluminibus publicis portubus . . • et locis
superinundatis quibuscunque contra pacem ejusdem dominse
nostrae legesque statuta et ordinationes dicti regni sui Angliae ac
communes leges, statuta, et ordinationes marittimas curiie su®
Admirallitatis ejusdem qual . . . habita facta attemptata sire
perpetrata tam in civitate London et com. Middlesex ac in
civitatibus Cantuar et Boffen, ac in villa sive oppido de Fever-
sham in com. EantisB, necnon in villa sive oppido de Colcestriae
in com. Essex, ac in Bur^o de Southwark in com. Surrey, quam
in com. Essex Eantia (?) et Surrey infra libertates et franchesias
et extra audiend. (?) et terminand. assignat VICECOM. Surrey
Salutem. Ex parte pr^fatae dominse nostrsB Reginae tibi diximos
firmiter injungendo quatenus non omittetis propter aliquam
libertatem sen franchesiam quin venire fSacias coram nobis et
sociis nostris justiciariis prsBdictis in prsetorio (?) sive loco solito
judiciali ibidem die Mercurii nono videlicet die mensis Martii
prox. circa horam octavam ante meridiem ejusdem diei qnad-
raginta octo aut plures probos et legales homines de dicto Bargo
de Southwarke et com. Surrey ac de viUis et hundredis ejusdem
quorum (?) quilibet habeat terras et tenementa annui valoris
quadraginta solidorum de minimis vel bona et catalla centum
.... per quos rei Veritas melius sciri poterit et inquiri (?) ad
inquirendum et ulterius faciendum ex dicta domina Begina ea
omnia et singula qua per nos et alios socios nostros Justidarios
prsedictos eis in ea parte tunc et ibidem adjungentur, et quod ta
vel minister tuns tunc et ibidem sis ad ea omnia et singula quffi
ad eund. (?) vel ejus pertinent. . . . faciend. et habeas ibidem
nomina et cognomina dictorum juratorum una cum hoc precepta
Dat Londini sub sigillo CurisB Admirallitatb duodecimo die
Mensis Augusti, 1585, Begni Scr. Dom. nos. Elizabeth Begins
anno vicesimo septimo.
T. Harewarde (?).
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COUKT OF DELEGATES. 235
HAKBTN 0. BERRY. 1648
THE THOMAS AND THE JOHN.
The nature of this suit does not clearly appear. It is not described in the
title as a causa damni; but it seems to have been a suit brought by the
owners of the Thomas and owners of cargo on board her against the John and
her cargo to recover damages for a collision between the John and the Thomas^
in which the Thomas and her cargo were totally lost and the John and her cargo
escaped. Separate sentences were made by the Admiralty Ck>urt against the
owners of the John and the several owners of cargo on board her condemning
them to make good the loss on the ThoToas and her cargo rateably according to
the values of their respective interests. Upon appeal by the owners of the
Jokii and owners of her cargo these sentences were varied by the Judges Dele-
gates, and the several appellants were by consent condemned to make good half
the loss on the Thomas and her cargo, rateably according to their respective
interests in ship and cargo, the aggregate value of the John and her cargo being
taken at £3924 lis. The case is remarkable as being the earliest, so far as the
present writer has been able to discover, in which a sentence was made con-
demning the defendant ship in half the loss. Moreover, it will be observed that
the cargo on board the ship sued was arrested and condemned, as well as the
ship herself. Though the sentence of the Delegates w^nt by consent, such
cansent seems to have had reference only to the amount of the appellants'
liability inter se.
The title of the suit (Admiralty Court Act Book, 1646-1648, fol. 684) is as
follows :
Thomas Berry et alii ejus socii proprietarii navis The Thomas
(cujus Wil. Gibson erat magister) et Nicholas Skinner et alii
ejus socii proprietarii bonomm in eadem contra navem quandam
Tocatam The John (cujus Simo Bayly est magister) ejusque
apparatus et qusecunque bona in eadem ad London adducta,
necnon quascunque pecuniarum summas pro servitio nautarum
dictffi nayis The John debitas et Abraham Holditch et alios pro
interesse suo in bonis in navi The John pr8Bdict& attachiatis.
Budd. Yeo.
The following entry occurs in the Act Book, fol. 666 :
Die Lunae decimo octavo die mensis Septembris, Anno Domini
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236 KECORBS— HIGH COURT OF ADMIRALTY.
11^3 1648, coram yenerabilibus yiris doctoribas Gierke et Exton
Hariiyn Judicibus in Cenaculo Dominorum Advocatorum, &c., praesente
BmuY Thoma Wyan Armigero, dictse curise Kegistrario primario.
The
THQlf AS AND
The JciiiN^
BERRY SKINNER ET ALH CONTRA HOLDITCH ET ALIOS.
Bvdd. Smith, Yeo.
Ad audiendum sententiam. Quo die domini assignanmt ad
audiendum sententiam isto die post meridiem inter boras primam
et tertiam. Quibus die horis et loco Bvdd ex cansis per eum
Dominis Judicibus propositis porrexit separales sententias in
scriptis conceptas contra partes Yeo bona in naye The John in
bac parte arrestata yindicantes, quas petiit respectiye ferri ac
jus, &c. in presentia Yeo dissentientis et allegantis unum tantum
libellum fuisse et esse in bac causa datum et admissum, ideoque
unam tantum sententiam in bac causa ferendam fore de jure
debere et pro partibus suis porrigentis unam tantum sententiam
absolutoriam, quam petiit ferri ac jus, &c. ; dicto Budd acceptante
quatenus facit pro parte sua et qu&tenus facit contra partem suam
dissentiente et allegante separales stipulationes respectiye fuisse
et esse in bac causa pro partibus respectiye prsadictis interpositas
et non conjunctas et porrigente et petente ut prius insequitur (?)
&c. ; dicto Yeo dissentiente et allegante dictum libellum fuisse
ac esse datum et admissum post stipulationes prsBdictas inter-
positas et porrigente et petente ut prius insequitur (?) TJnde
Domini legerunt tulerunt et promulgarunt separales sententias,
pro partibus Bvdd; yiz\ unam contra Allanum Hoyell, alteram
contra WilUelmum Bond, alteram contra Samuelem Morris,
alteram contra Willielmum Wade, alteram contra Henricum
Grodsall, alteram contra Thomam Dashwood, alteram contra
Josephum Delamott, alteram contra Dominum Jobannem Col-
dell (?) militem, alteram contra Edwardum Atkins, alteram
contra Henricum Seely, alteram contra Jacobum Oyles, alteram
contra Petrum Legay, alteram contra Jobannem Roberts, alteram
contra Jobannem Harbyn et Jobannem Seely, alteram contra
Henricum Gold, alteram contra Franciscum Octaye (?) et
Jobannem Andrea Limago, alteram contra Jacobum Gould
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COURT OF DELEGATES. 237
(Grold ?) iuniorem^ alteram contra Petrum Seale, alteram contra 1648
Danielem Searle, alteram contra Bobertum Ellis, et alteram habbyn
contra Abrahamum Holditch, pronunciando condemnando de- berby
cemendo et declarando prout in eisdem respectiye sententiis The
-. ^_ ,. . - -,. o Thomas AND
contmetnr, dicto Yeo dissentiente protestante de nullitate, &C.9 The John.
et de grayamine, &o,y et de appellando, &c.
The editor has been unable hitherto to discover any of the above sentences.
The case was appealed, and the sentence of the Delegates against Harbyn &
Seelj was as follows. There are nineteen other sentences in similar terms
against the other respondents, the owners of the John and owners of different
parcels of goods on board her.
In Dei nomine Amen. Auditis, visis, et intellectis ac plenarie
et mature discussis per Nos Philippnm Jermyn, unum Justicia-
riormn ad Placita in Superiori Banco tenenda assignatorum,
yenerandum (?) Petrum Warburton, xmum Justiciariomm de
Banco, Nathanaelem Brent, Militem ac legnm doctorem. Curiae
PrerogatiyaB Magistrum siye Custodem, Johannem Greene, Ser-
yientem ad legem, Bobertum Aylett, Bobertum King, Bobertum
Wiseman, et Johannem Bond, legum respectiye doctores, in causa
infrascripta atque inter partes inferius nominatas yigore delega-
tionis Magnse AngliaB Sigillo (sigilli ?) commissionis (?) Judices
Delegates — Meritis et circumstantiis causae cujusdam appellationis
siye querelae Quae coram Nobis in judicio inter Johannem Harbyn
et Johannem Seeley partes appellantes et querelantes ex xma et
Thomam Bury ejusque socios, necnon Nicholaum Skinner ejusque
socios, Bichardum Hill, Edwardum Ashe, Thomam Thecher, Fran-
ciscum Lirrincott, Johannem Pountaine, Benjaminum Whet-
combe et socios, Johannem White, Samuelem Andrewes, Bogerum
Beale, et Petrum Clungeon (?), partes appellatas et querelatas
partibus ex altera nuper yertebatur et pendebat yertiturque adhuc
et pendet indecisa rite et legitime procedentes partibus praedictis
per earum procuratores coram Nobis in judicio legitime com-
parentibus, parteque antedictorum Thomae Bury et sociorum
Nicholai Skinner et sociorum, Bich. Hill, Edw. Ashe, Thomae
Thecher, Franc. Lirrincott (?), Joh. Fountaine, Benj. Whetcombe
et sociorum, Joh. White, Sam. Andrewes, Bogeri Beale, et Petri
Clungeon Sententiam ferri ac justitiam fieri pro parte sua, parte
yero antedictarum partium appellantium et querelantium senten-
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238 RECOKDS— HIGH COURT OF ADMIRALTY.
1648 tiam et justitiam etiam pro parte sua instanter respective postn-
Habbtn lante et petente RIMATOQUE primitus per Nos toto et integro
Bbmt. processu alias (?) coram Nobis in hujusmodi negotio habito et
The fJBu^to ac diligenter recensito Servatisque per Nos de jure in hac
Thomas AMD ^, , . ^,^ f. . • « ,.
The John, parte seryandis ad nostra sententise diflSnitiysB sive nostn nnalis
decreti prolationem in hujusmodi negotio ferendi sic duximus
procedendum fore et procedimus in hunc qui sequitur modum ;
QUIA per acta, inactitata, deducta, allegata, exhibita, proposita,
probata pariter et confessata in hujusmodi negotio conspeximus
luculenter et invenimus partes hincinde intentionem suam in
processu duorum judicum a quibus in hujusmodi causa transmisso
et in libello, actis, et processu coram Nobis in hujusmodi instan-
tia admissis et fia.ctis legitime deductis Qu8b quidem prsemissa ex
his lectis et insertis habemus et haberi yolumus sufScienter et ad
plenum quoad inferius pronunciandum fundasse IDCIRCO NOS
Philippus Jermyn, Petrus Warburton, Nathaniel Brent, miles,
Johannes Greene, Eobertus Aylett, Bobertus King, Bobertos
Wiseman, et Johannes Bond, Judices Delegati, ChrisU nomine
primitus invocato ac Ipsum Solum Deum oculis nostris praepo-
nentes et habentes, deque et cum consilio jurisperitorum com
quibus in hac parte communicavimus matureque deliberayimus
. ex consensu et ad petitionem Thomae Bury et sociorum Nicholai
Skinner et sociorum, Boberti Hill, Edwardi Ashe, Thomae Thecher,
Francisci Lirrincott, Johannis Foxmtaine, Benj. Whetcombe et
sociorum, Johannis White, Samuelis Andrewes, Bogeri Beale, et
Petri Clungeon, partium appellatarum praedictarum pro plenii
et plenaria jurisdictione nostra in hujusmodi causa pronunciamus
et declaramus, et habita diligenti in (et ?) matura consideratione
tam super omnibus et singulis meritis causae praedictae et toto
processu in eadem in utraque instantia quam super sententia per
Dominos Judices Curiae Admirallitatis in prima instantia lata et
promulgate et nobis transmissa, eandem sententiam eo quod
praefati Joh. Harbyn et Joh. Seely in contributionem pro rata
eorum [suorum in another of the sentences] bonorum praedic-
torum servatorum erga damna dictae uavis The Thomas et bonorum
in eadem sicut praefertur ex causa communi praedict& deperdi-
torum condemnandos fore debere pronxmciantur et condemnautur
generaliter pront (?) i^ dicta prima sententia sine aliqua specifi-
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COURT OF DELEGATES. 239
cat& declaratione de certitudine suminsB dictae contributionis ex 1648
consensu prsefatamm partium appellatanun corrigendam et re- harbtn
fonnandam fore debere etiam pronunciamns ; Prcefatamque nayem berrt
The John et bona in eadem conseryata ut praefertur in schedula Thb
libello in prima instantia hujus causae annexata memorata data The John.
admissa et confessata extendentia in toto pro dicta nave The John
et omnibus bonis scheduletis conseryatis praedictis ad summam
siye yalorem trium millium nongentarum yiginti quatuor librarum
et quatuordecim solidorum legalis monetae Angliae in semisse et
medietate yeri yaloris dictae nayis The Thomas ejusque appara-
tnmn et accessionum suarum Necnon quorumdam mercimoniorum
et bonorum sicut praefertur deperditorum et ad summam in execu-
tione hujus nostrae sententiae liquidandam extenden. (?) praefatis
Thomas Bury et sociis Nicholas Skinner et eociis, Bich. Hill,
Edw. Ashe^ Thom. Thecher, Prancisc. Lirrincott, Joh. Fountaine,
Benj, Whetcombe et sociis, Joh. White, Sam, Andrewes, Bog.
Beale, et Petro Clungeon condemnandam fore debere, praefatosque
Johannem Harbyn et Johannem Seely in yirili et proportionabili
parte dictae semissis et medietatis yaloris nayis The Thomas^ ejus-
que appaiatuum et accessionum et bonorum in eadem deperdi-
torum pro rata bonorum et mercimoniorum suorum in hac causa
per eos yindicatorum condemnandos fore de jure debere pronun-
ciamus, decemimus, et declaramus, sicque condemnamus [here
words condenining the appellate parties in costs are struck out] per
hanc nostram sententiam di£Snitiyam siye hoc nostnmi finale decre-
tum, quam siye quod ferimus et promulgamus in his scriptis.
Philip. Jermyn.
P. Wabburton.
N. Brent.
Jo. Greene.
Bob. Aylett.
Bob. King.
Bob. Wyseman.
(Endorsed) Lecta lata et promulgata fuit .... sententia retro-
scripta per Judices Delegates in eadem mentionatos (?) die
Veneris septimo yidelicet die mensis Februarii Anno Domini 1650
horis pomeridianis ejusdem diei in aula Hospitii yocati Sergeants
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240 KECOKD&~HIGH COURT OF ADMIRALTY.
1G*8 Inn in vico vocato Fleet Street, London . . . situate in prsesentii
mei Johannis Oughton notarii publici ac test, in actis . . . desaper
factis nominatorum (?)
J. OuGHTON, ^0^. Pvhl. Begistrarii . . . DeptUatus.
The effect of this sentence seems to be shortly as follows : —
By consent of respondents and appellants we pronounce that the sentence (of
the Court below) ought to be corrected and reformed so far as Harbyn and Seeley
are thereby condemned generally (without any specific declaration of the amount
of their contribution) to contribute rateably in proportion to their property not
loBt in the collision towards the loss of the Thomcu and her cargo lost as afore-
said by a common disaster (ex caus& communi) ; and that the John and the
cargo saved in her and specified in the schedule to the libel in the Court below
(the aggregate value of which is to be taken at £3924 14s. Od.) ought to be con-
domned in a moiety of the value of the TJiomas^ her tackle, Sec, and of the cargo
lost in her ; so as to make good to Bury, Skiner, Hill, &c., such sum in pursuance
of this our sentence ; and we pronounce that the said Harbyn and Seely ought
to be condemned in the proportionate part of the said moiety of the value of the
TJiomas, her tackle, &c., and of the cargo lost in her belonging to and claimed by
them. Cf. Molloy, Book II., ch. vi. § 12.
r
BILL OF LADING.
1650 The following copy of a bill of lading, dated 16th June, 1650, is taken from
the Admiralty Court Act Book of that date, fol. 108.
Shipped by the grace of God in good order and well conditioned
by mee, Humfrey Davenport, in and npon the good shipp called
the Jonathan .... of London, whereof is master, under God, for
^ this present voyage Captain Eobert Page, and now riding at
W anchor at the Barbados, and by God's grace bound for London, to
I say {sic) one butt, one punchin, one (?) hogshead, being so marked
and numbered as in the margent, and are to be delivered in the
like good order and well conditioned at the aforesaid port of
I London, the danger of the seas only excepted, unto Edward
Smallwood or to his assigns, and hee or they payinge fraight for
the said goods. In witness whereof the master of the said shipp
bath affirmed to three bills of lading, all of this tenor and date,
the one of which three bills being accomplished the other two to
stand void ; and so God send the good shipp to her desired port
in safety. Dated in Barbados the 16th June, 1650.
Mr. R. H. Page.
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COURT OF DELEGATES. 241
JURISDICTION OVER FISHERMEN. i65i
" Negotium piscatorum promotum per Ambrosium Berbinsall (?)
ejusque socios piscatores de le Hundred de Stroud contra Williel-
mum Peachy Thomam Cooper et Henricum Rose, et alios pisca-
tores de le Hundred de Milton in com. Cantii."
This was a dispute as to the right of fishing for oysters on the " East Grounds,"
on the shores of the county of Kent. The fishermen of Milton claimed an ex-
clusive right of fishing, and sought to exclude the fishermen of Stroud. Tumults
having arisen in reference to the dispute, the matter was referred by " the Gounsell
of State " to the Admiralty Court. The fishermen of Milton did not appear.
A decree was made in their absence on the 16th October, 1651. The substance
of the entry in the Assignation Book (16th Oct 1651) is as follows : —
After reciting the reference of the matter to the Court of
Admiralty by the Council of State ; the citation of the parties ;
default of appearance on the part of the Milton fishermen ; that
the East Grounds were within the ebb and flow of the sea, and
were an arm of the sea ; that London, Greenwich, Barking, and
Gillingham fishermen had fished there without interruption for
forty years ; that the fishermen of Stroud and of Milton had for
forty years served together as jurors in the Vice- Admiralty Court
of Kent and brought in orders for regulating the fishing, and that
those who broke such orders were punished in that Court ; that the
water-bailiff had never presented Stroud men for fishing on the
East Grounds, and that Stroud men had in fact fished there for
many years without interruption ; that prima faeie the fishing
must be publick since the East Grounds were an arm of the sea ;
that the Milton men had produced no grant to them of the fishery,
or proof of anything to hinder the common law right of the Stroud
men; the Court by interlocutory decree pronounced that the
Stroud men had the right to dredge for oysters on the East
Grounds^ and that the Milton men had no right to exclude or
prevent them ; that the latter be monished not to interfere with
the men of Stroud ; and condemned the Milton men in costs.
B
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242 RECORDS— HIGH COURT OP ADMIRALTY.
1653 GOLD V. SOUTHWOOD.
Appeal from the High Court of Admiralty in a damage (?) cause. Sentence
of the Court below varied as to amount of damages. Monition refused, where
action at law instituted.
Delegates.
(Jemiyn, Pvieston, Ashton, JJ., Doctors AyUty Wyseman, and
Hoortye (?).)
GOLD AND KIKCOCKE against SOUTHWOOD.
Stiokley. Smith.
Ist Feb., 1652 (1653). — Which day Smith porrected a sentence
drawne in wryting on the behalfe of the said John South wood,
which he prayed to be read, given, and promulgated for his party,
and justice, &c., in the presence of SucMey dissenting and por-
recting a sentence also in wryting on the behalf of the said Gold
and Kircocke, which he prayed to be given for them, and jus-
tice, &c. Whereupon, upon a full and deliberate hearing and
mature consideration had, the said Judges Delegates declared that
they had received full information and satisfaction touching the
meritts of this cause, and that sentence must be given for the
said John Southwood therein ; but as to the quantity or value
only of the damage and costs sued for by the said Southwood, in
this cause they appointed Hoortye (?) to receive further informa-
tion on Monday the 14th of this instant February, between two
and five in the afternoon in this place ; and assigned the cause
for sentence at the same time, and monished the respective
proctors on both sides to attend accordingly.
14th February, 1652 (1653).— The said Judges, upon full in-
formation and hearing of both sides, found that the sentence
given in the Admiralty against Gold and Eircocke ought to be
reformed ; and in order thereto they, upon mature deliberation,
resolved to allow unto the said Southwood, by their sentence,
diffinitive for the sort principall or value of his loss of ship and
goods sued for in this cause only the sum of £566, and £100 for
his damages ; and the expenses and costs on both sides shall be
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COUBT OP DELEGATES. 243
compensated and set one against the other soe that no costs be 1653
given to either party, and ordered South wood's party to prepare gold
a sentence to that effect against their next sitting, which they squt^ood
appointed on Saturday next in this place between two and five
in the afternoon, and monished both sides to attend according, in
the presence of Smith accepting the same soe much as it makes
for his party and SucTdey dissenting.
26tli Oct. 1653. — ^Monition granted against one Prigmore, ** a sergeant," who
had senred the monition upon Cole and Eircocke's sureties, and to whom a
moiety of the £666 damages had been paid for the use of South wood, ordering
him to pay the £333 into Court ; and a monition was at the same time granted
igainst the sureties for payment of the remaining moiety.
4th Nov. 1663. — ^The money not having been paid into Court by Prigmore,
it appeared that Southwood had sued him at law for the same.
.... Whereupon the Court judging it would be unreasonable
that Southwood should have a double remedy for the same thing,
and therefore as to that moiety they did forbeare {sic) to decree
anything further, but left him to his remedy at law.
Ist Dec. 1653. — Southwood acknowledged receipt of £333 which had been
levied upon the sureties.
PEOCEEDINGS TO BE IN LATIN. 1660
The following entry in the Admiralty Court Assignation Book, dated 1st Aug.
1660, commemorates the restoration of Charles II. to the throne of England and
of the Latin language to the Admiralty Court.
Primo die mensis Augusti Anno Domini millesimo et sexcen-
tesimo anno scilicet jubileeo non solum linguse Latinse feli-
citer restitutae sed et Illustrissimi principis Caroli Secundi a
populo suo diu per Proditores depulsi, nunc mirandfi Dei provi-
dentia restaurati, quem Deus optimus Max. diutissime servet
incolumem.
CLARKE V. SCATTERGOOD. 1663
THB WARBWELL AND THE SUSAN.
The following sentence of the Judges Delegates was made in a suit by the
owners of the Warewdl against the owners of the Susan to recover damages fur
injury to the Warewell and her cargo by the anchor of the Sman^ which was
onbuoyed, and upon which the Warewell grounded and she lay at anchor in the
Thames. It reverses the sentence of the Admiralty Court, and condemns the
Sn»an owners in the amount of the loss to the Warewell and her cargo caused
B 2
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244 RECORDS— HIGH COURT OF ADMIRALTY.
1G03 by the negligence of those on board the Susan in leaving their anchor without
— a buoy.
ScjATi^iiiooD. I^ I^®i nomine, amen. Auditis visis et inteUectis ac plenarie et
mature discussis per nos Egidium Sweet, legum doctorem, alm»
curiae Cant, de Archibus London ofBcialem principalem Domi-
num, Gulielmum Merrick, militem et legum doctorem, Cari»
PrserogativaB Cant. Magistrum Custodem sive Commissarinm,
Bobertum King Jacobum Me^ter et Johannem MyUes, legmn
respective doctores, in causa infrascripta atque inter partes inferiiis
nominatas Judices Delegates Begios legitime constitutes; Me-
ntis et circumstantiis ejusdem caussB Appellationis et querelas
qu8B coram nobis in Judicio inter Bobertum Clarke ejusque
socios proprietaries navis cujusdam yocatae The Waretodl, partes
appellantes et querelantes, ex una, et Bogerum Scattergood ejos-
que socios proprietaries nayis cujusdam vocatsB The Stisan, partes
appeUatas et querelatas, partibus ex altera, aliquandiu yertebatnr
et pendebat vertiturque adhuc et pendet indecisa rite et legitime
procedentes. Partibus praedictis per earum respective Procura-
tores coram nobis in judicio legitime comparentibus, parteqne
prsefati Boberti Clarke ejusque sociorum sententiam ferri ac
justitiam fieri pro parte sua, parte vero memorati Bogeri Scat-
tergood ejusque sociorum sententiam prout in actis etiam pro
parte sua instanter respective postulante et petente ; JKimatoque
primitus per nos toto et integro processu coram nobis in hujus-
modi causa inter partes prsedictas respective habito et facto ac
diligenter recensito servatisque per Nos de jure in hac parte
servandis ad nostra sententise diffinitivae sive nostri finalis decreti
prolationem in hujusmodi causa sic duximus procedendum fore et
procedimus in hunc qui sequitur modum : Quia per acta inactitata
deducta allegata exhibita proposita probata pariter etconfessatain
hujusmodi causa comperimus luculenter etinvenimus partem prse-
fati Boberti Clarke ejusque sociorum intentionem suam in quodam
sue Libello Appellatorio alias coram Nobis in hujusmodi causa
date et oblato et penes Begistrarium hujus Carise remanente de-
ductam (Quem quidem Libellum Appellatorium pro hie lecto et
inserto habemus et haberi volumus) sufficienter et ad plenum
quoad hie inferius pronuncianda fundasse et probasse, Nihilque
saltem efifectualiter ex parte aut per partem dicti Bogeri Scatter-
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COUBT OF DELEGATES. 245
good ejtisque sociomm in hac parte exceptum deductum allegatom 1663
exhibitom ant narratnm fnisse ant esse quod intentionem prsefati ~^cla^b
Boberti Clarke ejusqne sociomm elideret sen qnodomodo ®J^®r- 0^^^,^^^^^
varet ; Idcirco Nos Jndices Delegati antedicti Christi nomine pri-
mitns invocato ac ipsnm solnm Denm ocnlis nostris praeponentes
et habentes deque et cum consilio Jnrisperitomm cum quibus in
hac parte commnnicavimus matnreqne deliberavimus pro yoce
appellationis et querelaB ex parte et per partem prsefati Boberti
Clarke ejusqne sociomm in hac parte interpositarum ; ipsasqne
appellationem et qnerelam fnisse et esse veras justas et legitimas et
ex yeris justis et legitimis causis interpositas, proque jurisdictione
Nostra sen potins Serenissimi Domini Nostri Begis in hac parte
pronnnciamus decernimus et declaramns^ necnon male nulliter et
inique per judicem a quo extitit in hac parte appellatio decretum
processum et sententiatum fnisse ac esse pronnnciamus decerni-
mus et declaramus; Sententiamqne prsetensam difiSnitivam per
Judicem a quo nt prsefertur latam omniaqne exinde sequentia
reyocamus cassamus irritamus et annullamus et cassam cassa
irritam irrita nnllam et nulla fnisse et essse yiribusque et effectn
juris camisse et carere debere pronnnciamus decernimus et de-
claramus; Prsefatumque Bobertum Clarke ejusqne socios anno
et mensibus in hac causa libellatis Dominos et Proprietarios
dictae nayis The WareweU de CHpmco fnisse et esse^ dictamque
nayem infra tempus praedictum in hoc riyo Thamesis carbonibus
onustam salyo appulisse et in dicto riyo Thamesis ad anchoram
fluctaasse (sic) et salyo remansisse per spatium yiginti horamm
aut eo circiter, ac durante tempore antedicto anchoram quandam
ad dictam nayem The Susan spectantem prope dictam nayem The
WareweU in riyi Thamesis aquis obrntum absque signo (Anglice
yocato a buoy) yisibili jecisse ; ad quam anchoram tabula dictse
nayis The Susan fixa fuit^ praefatamque nayem The WareweU in
yersione sua in dicto riyo super dictam anchoram absque signo
yisibili (ut praefertur) jacentem recidisse et insedisse et ratione
ejusdem dictam nayem The WareweU grayiter onustam ac super
dicta anchora insedentem per eandem anchoram fractam et per-
foratam in charina ejusdem {sic) fnisse ac eidem anchorae adhe-
sisse, ac ratione ejusdem aquam in dictam nayem violenter fluxisse,
adeo ut magister et nautae dictae nayis Tlie WareioeU eandem
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246 EECORDS—HIGH COURT OF ADMIRALTY.
if;63 nayem conatu suo summo ad ripas perferre aut eandem ab obratti
qlabkj! itt aquis preservare minime potuerant ; prsBfatumque Kobertum
SoATT^ooD ^i^^'^® ejusque socios damnum et detrimentum in dicta navi The
Warewell et ejus apparatibus et accessionibus et earbonibus prad-
dictis pulvere tormentario et aliis provisionibus et materialibns
dictse navis in expensis extraordinariis ratione damni praedicti
(ut praefertur) sustenti ad summam viginti marcarum legalis
monetae AngliaB passes fuisse et sustinuisse pronunciamus decemi-
mus et declaramus ; Praefatumque Kobertum Clarke ejusque socios
flamnum praedictum ratione negligentiaB et incuriaa Magistri et
nautarum dictae navis The Svsan anchoram suam praedictam in
rivo Thamesis absque signo vocato a buoy eidem visibiliter affixo
contra morem et consuetudinem aliarum nayium in dicto riyo
obseryatam jacere permittendo etiam pronunciamus decemimus
et declaramus ; Quocirca praefatum Bogerum Scattergood ejusque
socios in dicta summa yiginti marcarum pro damno praedicto pro-
nunciamus decernimus et declaramus sicque oondemnamus per
hanc nostram sententiam diffinitiyam siye hoc nostrum finale
deoretum, quam sive quod ferimus et promulgamus in his scriptis.
W. H. Turner. G. Swbit.
Wm. Mebrigk.
Eg. King.
Ja. Master.
Jo. Mtlles.
Lecta lata et promulgata fait .... Sententia retroscripta per
Judices Delegates in eadem nominates in aula publica Hospitii
Dominorum adyocatorum Londini notorie scituat. (?) tricesimo
septimo die mensis Junii anno Domini 1663 inter horas 3^ et
j-mMn pog^ meridiem ejusdem diei in praesentia mei John Oughton
iiotarii publici ac testant. in actis desuper factis nominatormn (?)•
Ita tester, J. Oughton, Not. Pub. Reg. Deputat.
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COUET OF DELEGATES. 247
THE HOPEWELL. 1668
The following note of a case in which the Admiralty Court was prohibited
from proceeding in the suit of a material man, is amongst the Admiralty Court
papers at the Record Office. It is in handwriting of (probably) the seventeenth
century.
The ship Hopewell, John Tracy master and part owner.
1. The shippe in anno 1668 being bound for a voyage to
Newfoundland did stand in need of ropes and cordage^ without
which she could not proceed on her yoyage.
2. The master John Tracy (qua master of this shippe), anno
1668, buyes of John Gunet (?), a materiall man, seyerall quanti-
ties of ropes and cordage for to furnish the shippe for this voyage,
amounting in all to £62 11a., whereof £20 was paid and no
more.
3. These ropes and cordage were put aboard the shippe and
employed to fitt and rigge the shippe, and thereupon the shippe
proceeded upon her voyage.
4. The cordage being not paid for, John Gunet arrests the
shippe by warrant out of the Admiralty Court for recovery of
his monies due .... for this cordage.
5. To this action (?) Phillip Benninge (?) and Bichard Colwell
and Tracy appeared, and alleged themselves to be owners, and
put in baile to the action (?) of Gunet, and thereupon the shippe
is released from the arrest.
6. John Gunet gives in his libell, which is admitted, and litis
contestatio is made thereunto by the proctor of Benninge, Col-
well, and Tracy, and a commission awarded for examination of
witnesses ex parte (?) Gunet, which was executed in the countrey
and returned 4th Sess. T. Trin. 1671, and then publication was
awarded.
7. Benninge, Colwell, and Tracy in Trin. Term 1671 .... die
Hartis post tres septimanas Sanctae Trinitatis (?), Anno xxii.
Caroli Begis obtained a rule from the King's Bench against
Gunet to shewe cause prime die .... why a prohibition should
Bot be granted to stay proceedings in the Admiralty Court.
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ajte. RECOBDS— HIGH COURT OF ADMIRALTY.
ie^t 8, This rule is concealed (?) and not served upon the proctor
Tbe of Gunet untill about twenty daies before Michaelmas Tenn,
HOPEWELL, 9 rjj^^ g^g^ ^^y ^f Michaelmas Term Gunet by his counsel
appeares at the King's Bench barre and opposes the granting of
this prohibition ; the contract (as appeares by the libell) being
laid to be infra fluxum et refluxum maris, &c.
10. The Court of King's Bench notwithstanding grant a pro-
hibition.
tm EEX V. DE LA VAL.
6th Feb. 1677 (1678). Under this date there is the following entry (in
English) in the Assignation Book.
The Judge (Dr. William Turnbull, surrogate) declared that
the cause had long depended, and was of very great moment,
and that there was a doubt concerning the true meaning of the
Act of Indemnity and other Acts of Parliament, and that in
regard the Judges of the land do de facto interpret the meaning
of Acts of Parliament, not only in relation to the matters of
Common Law, but all other Courts, hee desired that before hee
proceeded further in the cause the Judges of the lande should
attende and be consulted herein and deliver their opinions, and
that the case should be drawn up with all speed by the partyes
in order to be shewen to the Judges, et continuavit banc causam
ill statu quo, &c., in prox.
lar* THE HOPE DE HAMBURGH.
The following is an application for and grant of a commission to enquire
to!icbing cargo wrecked near Portsmouth and detained by salvors or wreckers.
Ad, Ct. Act Book, 15th Feb. 1674.
Negotium inquisitionis pro nave quadam vocata The Hope de
Bamhv/rgh (cujus Johannes Aries erat magister), ejusque, &c., et
quibuscunque bonis, rebus, mercibus, et mercimoniis in eadem
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COUBT OF DELEGATES. 249
nuper onustis, in cnrsn navali in loco maritimo prope portmn 1674
PortsmathisB in scopulos si?^ arenas dejectis et dilaceratis. Thb Hon db
Hambubqh.
T. Smith.
Quo die T. Smith exhibuit procnratorium snom pro Johannes
Gull Gerardo et Petro Bormester et sociis civitatis flamburgensisy
fecitque se, &c., et allegayit dictam nayem yocatam The Hope,
ejusque, &c., et quaecunque bona, res, mercimonia in eadem
onusta in cursu suo nayali in loco maritimo prope portmn
PortsmnthiaB yentis adyersis ac yi tempestatis in scopulos siye
arenas impulsa dejecta et dilacerata fuisse ; magistrum tamen et
nautas ejusdem nayis ad terram (fayente Deo) salyos eyasisse,
dictosque Johannem Gull Gerard et Petrum Burmester tunc
temporis (?) fuisse et esse proprietarios legitimes eorundem;
ejusdem tamen miserabilis fati et infortunii occasione magnam
partem dictsB nayis ejusdemque, &c., et bonorum in eadem nayi
tunc existentium per nonnullos inhabitantium locorum adja-
centium nactam et possessam sen potius direptam et a dictis
dominis suis detentam et concelatam fuisse et esse. Unde
Dominns ad petitionem dicti Smith decreyit commissionem fieri
ad partes ad exquirendum omnia et singula bona, &c., in eadem
nayi tempore dicti infortunii existentia, omnesque partes dictsB
nayis ejusque apparatuum et accessionum, eademque in usum
proprietariorum eorundem conseryentur ; et commisit yices suas
Domino Boberto Holmes militi^ yice AdmiraUo Domini Begis in
Com. Southampton et insula Yectis ejusque Deputato cuicunque,
necnon Francisco Arthur^ majori oppidi PortsmuthiiBy Hugoni
Salisbury, Bichardo Blashford (?), Danieli Giles Bexter, et
Johanni Bye, et Hugoni Williams . . . . yel duobus eorum ad
minus. Smith ad transd. (?) dictam commissionem immediate
post executionem, &c.
MOBBIS V. HENCHMAN.
THE NEWFOUNDLAND MEBGHANT.
Title of an average suit, 3rd September, 1675 ; Admiralty Ck>urt Act Book,
foL 363. There are other similar cases about this period.
Negotium ayeragii promotum per Thomam Morris, proprie*
tarium nayis yocata the Newfoundland Merchant (cujus Thomas
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250 KECORDS— HIGH CX)URT OP ADMIEALTY.
1675 Martin est magister), ejusqne, &C.9 et contra Thomam Hench-
marptr man, Willielmum Bolton, Johannem Crump, Johannem Harwood,
HKHCHiiAv. ®* Georgium Butler, mercatores et in parte exercitatores dictae
navis in specie, ac omnes, &c.
Another case, 24th February, 1674.
t6». THE WILLIAM de YAEMOUTH.
Negotimn averagii sire probationis tempestatis procelI» siye
damni promotum per Jacobnm Croskeys, magistrum, et Williel-
mum Porter et alios proprietaries naris yocat«B the WUliam de
Yarmouth contra Thomam Papillon, Alexandum Merriall, Johan-
nem Daniell juniorem, Laurentium Martel yiduam Thomas
Seward, Herbertum Aylwen, Johannem Hough, Johannem Perry,
Gulielmum de Carbonel, et Michaelem Godfrey, jus titulum
aut interesse in bonis in dicta naye apud Caen in Gallia onustis
et ad hunc portum London adductis habentes sen habere prae-
tendentes.
Exton.
Quo die Exton exhibuit proenratorium suum pro dictis Jacobo
Crosskeys et Willielmo Potter et aliis proprietariis dictae nayis,
et fecit se, &c., et allegayit nonnulla bona in dicta naye apud
Caen onusta et abinde ad hunc portum London ratione et occasione
tempestatis siye procellsB in cursu dictse nayis a portu de Caen
praedicto ad hunc portum London contingentis damnum et detri-
mentum passa fuisse et sustinuisse. Quare petiit dictoe Thomam
Papillon (here follow the names of the other defendants) person-
aliter si, &c., alioquin per affixionem, &c., citandos fore ad con-
cessendum (?) in coenaculo Dominorum Adyocatorum, &c., die
Joyis quarto die mensis Martii prox. inter horas nonam et undeci-
mamantemeridiemejusdemdiei ad yidend. allnem (allegationem?)
ex parte dicti Crosskeys etWmi Potter et sociorum tempestatem,
procellam, siye damnum praedictum concemend. (?) dari et admitti
et testes desuper produci recipi jurari et examinari, eorumque
dicta et depositiones publicari in perpetuam rei memoriam,
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COURT OP DELEGATEa 251
nlterioremque processom fieri juxta juris in ea parte exigen. 1675
visur. et auditur. ulteriusque factur. et receptur. quod justum fuerit thb William
in hac parte, cum intimatione, &c. Quod dictus Dominus Surro- »■ Yarmouth.
gatus (Dr. Bichard Lloyd) ad petitionem dicti Exton decrevit
HAEPER V. GEAVENOE. 16T7
THE LAMB AND THB ADVENTUBE.
This appears to have been a suit to recover damages for a collision, in which
the plaintiflTs ship was lost. A decree for half the loss was made by Sir
Richard Lloyd sitting as surrogate for Sir L. Jenkins, Judge of the Admiralty
Court; see Assignation Book, 6th July, 1777; 11th Dumber, 1678. The
case was appealed, and the sentence of Sir R. Lloyd was affirmed by the
Delegates on the 7th of May, 1678. The sentence of the Delegates is preserved,
but affords no further information.
Greorgius Harper et socii proprietarii navis Le Laml, cujus
Ric Lovell est magister, ej usque, &c., contra navem Le Advert
iure de Ixmdon, cujus Joh. Coleman est magister, et contra
W" Grarenor, Georg. Browne, et socios pro interesse, &c.,
interyenientes.
Smith. Franklin.
Smith exhibited an afiSdavit certified by the Bailiffs of Great
Tarmouth, which to all effects of law was admitted upon his
petition and read, and after reading whereof and of the other
proofe the Judge pronounced that he finds that the sum of £135
was the prime cost of the yessel, and that the sum of £61 55.
was afterwards paid to the shipwrights, and £11 3s. was paid to
the smith for reparations and meliorations, amounting in all to
£207 88., and the Judge thereupon at Smith's petition did con-
demn Franklin^s clients in the moiety thereof, to witt, £103 14«.,
lawfull money of England, to be paid to the said George Harper
& Company, Smith's clients, or their lawful attorney ; and did
order and decree that the said Franklin's clients and their baile
should be monished to pay the same to the said Harper & Com-
pany before the 20th of next January, or otherwise to be attached
and kept in safe custody of the Court, Franklin dissenting.
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252 RECORDS— HIGH COURT OF ADMIRALTY,
"''^8 CLARKE V. THE FAIRFIELD.
The fallowing entry, referring apparently to a conflict of jarisdiction between
the Admiralty and Common Law Courts, appears in the Admiralty Assignation
Book under date 5th September, 1678.
Thomas Clarke con. cimbam sive yecturam quandam vocatam
TJie Fairfield, ejusque, &c., nuper ad Edmundum Handley sed
nuno ad Edwardum Beauchamp spectantem et contra dictum
Uaoilley in specie ac omnes^ &c.
Miller. Machardi (?).
Ad audiendum yoluntatem Domini super petitionem Exton.
Edvardus Beauchamp con. eaud.
Chapman.
Et , » . . ad petitionem Chapman.
.... That the Marshall of this Court shall restore the posses-
sion uf the said lighter The Fairfield, with her tackle, apparel, and
furniture, to Thomas Winston, Esquire, Sheriff of Surrey, or to his
under Sherriffe, or order, in whose possession she was by virtue of
an execution at common law at the time of the arrest made by
the authority of this Court; he, the said Thomas Winston or his
deputy first depositing in the Begistry of this Court the sum of
ten pounds of lawful money of England and submitting the same
to the judgment and condemnation of this Court as to the
cbargoB of the said Thomas Clark in obtaining a primum decretum
ill tLis Court against the said lighter, or such part thereof (if
any) as this Court shall so order ; in prsBsentia dicti ExUn, attes-
tant, &c.
1679 SNABY V. HEATH.
13tL May, 1679. Ad. Assign. Book. Action by master for wages. Not
appealed*
Johannes Snary nuper magister navis cujusdam yocatse The
Mar If de London contra eandem navem ejusque, &c., ac contra
omnedj &c., necnon Isaacum Heath et socios pro interesse ....
intervenientes.
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COURT OF DELEGATES. 253
Barrett. SucTcley. 1679
Ad audiendmn hanc cansam sumarie ad petitionem Barrett. Skajt
The said John Snary consented to take after the rate of £5 a Hkath.
month for his services for (?) the eight months he served in the
ship. Buckley alleged that the said Snary was to go the voyage
by the , and that he refused to go by the , and
used not have above £15 or £20 for the whole voyage.
« « « « «
The Judge finalites interlognendo did decree that there should
be paid to the said John Snary the sum of £30 for his services
for the whole voyage, and condemned the said Heath & Company
in £4 for expenses, and monished Mr. Stone (?) present in Court
to pay the said £30 and £4 by Monday next, otherwise to be
attached.
PILKINGTON V. THE ORRORY. 1679
LE ORROBY.
The entry below in the Admiralty Court Assignation Book, 4th N'ov. 1679,
seems to relate to an attempt to carry into execution by process of the
Admiralty Court in England, a sentence made by the Admiralty Court in
Ireland. There was no appeal.
Thomas Pilkington ac Wilmus Eiffin et socii contra navem Le
Orrary, cujus Zacharias Stilgoe est magister, ejusque, &c., et ad
dictos Pilkington, Eiffin, et socios spectantem et contra dictum
Stilgoe in specie ac omnes, &c.
SucUey. Rocky Senior. Franklin.
The Judge declared that he cannot by law put in execution
the sentence or decree made in Ireland.
Dominus assignayit Buckley et Franklin ad faciendum sum-
ariam probationem possessonis partium suarum et in super (?)
informand.
Et Dominus ad petitionem Buckley continuavit ... in prox.
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264
EECORDS-HIGH COURT OF ADMIRALTY.
1979
NEWMAN V. CROFT.
Tbis was a suit to recover damages for a collision between the Lamh and the
Mom and Croum, for which the latter was solely to blame. Sentence for
full damages was given against her; see Admiralty Court Act Book, 18th
December, 1679.
Thomas Newman et socii proprietarii navis le Lamb, cujus And.
Neal est magister, contra navem le Rose and Crowriy cujus Thomas
Croft© est Magister, ejusque, &c., necnon dictum Crofte pro inter-
63S6 5U0 intervenientem.
Smith. Svckley.
Quibus die et loco perlectis probationibus aliisque in hac causa
factis Dominus declaravit ut sequitur. That it was sufficiently
proved that the ship the Bose and Crown did give the blow to
the said ship the Lamb, and proceeding to state the damage
snstiiiued thereby, that by the particular witnesses' oaths and the
depositions of Andrew Veal, the master, that what was paid for
the repairs of the damage to the said ship Lamb was as follows.
£ 8. d.
Paid the smith ....
. 16 2 10
„ sailmaker
. 12 6
„ carpenter
. 53 14 1
„ ropemaker . . .
. 11 11 6
„ clockmaker . . .
. 1 12
Paid for weighing the ship
. 50
£134 2 11
Turn Smith porrexit sententiam in scriptis conceptam, quam
petiit fieri ac jus, &c,, in prsesentia Suckley dissentientis et
petentis justitiam sibi et parti suae in hac causa fieri et ministrarL
Unde Dominus legit tulit et promulgavit dictam sententiam pro-
nuuciando condemnando et ceetera faciendo prout in eadem
continetur, praesentibus tum et ibidem una cum me notario
publico, &c. &c., procuribus, Suckley protestante de grayamine et
de appellando.
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COURT OF DELEGATES. 255
CHAKGE TO GRAND JURY. leso
From amanascript volume in the British Museum (Add. MSS., 24104, p. 183),
formerly in the library of the College of Advocates.
The charge of Sir Leolin Jenkins given to the Grand Jury at
the Admiralty Sessions in Southwark, 18th February, 1680 : —
Gentlemen of the Jury,
Before I mention any particulars I shall in short aquaint you
with the nature of this commission, which is grounded upon the
statute of 23 Hen. 8, 15. The end of it is to bring ofifenders on
the open sea to their tryalls by the common laws of the land
which (1) before were by the course of the civil law. Now, the
crimes mentioned in the statute are treasons, felonies, robberies,
or piracies, murders, manslaughters, and confederacies done and
committed in and upon the sea, or in any other haven, river, creek
or place where the Admiralls have or pretend to have power,
authority or jurisdiction. There are two other parts of this com-
mission which direct you first to enquire of all offences against
several particular statutes and all statutes transgressed against
upon the sea and within the Admirall's jurisdiction, and secondly
to enquire of all transgressions committed contrary to the ancient
laws and customs of the Admiralty ; and it is of the same nature
as commissions of Oyer and Terminer within the bodies of
counties, only they are to enquire of offences committed within
the limits of counties, and by this commission we are to enquire
of offences upon the seas or within any navigable rivers havens
or creeks where the Admirall hath or ought to have jurisdiction.
And I think there is no need of saying anything to the words
" hath or pretends to have jurisdiction," for all commissions of this
kind run in this form, viz., " where the Admirall hath or ought to
have jurisdiction." The particulars that you are to inquire into
according to the statute [in] the first part of the commission are
these : first, high treason (2). Now it is high treason to imagine,
contrive, &c., to adhere to enemies, to levy war, to block up ports,
to carry away ships, to invent or contrive mischief against God's
vice-gerents, the breath of our nostrils. The seamen have been
the first that have ventured themselves for the preservation of the
king and kingdom, and 1 hope there are no such offenders as
[(1) Vid. 27 Hen. 8, c. 4.] [(2) Marly, tit. Treason.]
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256 KECORDS-HIGH COURT OF ADMIRALTY.
1680 these to be found among . • . . Next you are to enquire into
petit treason ; and such are a servant's killing his master, &c
Then you are to enquire of felonies [and] murders which are
malice forethought (1). Now there are several sorts of felonies
and murders, as assaulting a man in a ship and killing him, &c.
Also you are to enquire of manslaughters, as where a man is
killed out of no malice forethought. There are severall sorts of
homicide, and therein goods and chattels are forfeited, except when
a man is assaulted by a pirate, if he kills the pirate he forfeits
not. The next thing is robbery ; and that committed on the high
sea is piracy, for piracy at sea is made up of the same ingredients
as robbery on land ; for it is piracy to assault a ship, carry away
a ship or goods out of a ship, unless it be in necessity ; for upon
necessity a man may take victuals or tetckle out of a ship, if the
ship can spare the same, or if payment be made or undertaken to
be made for the same, for then he is excused by the statute
28 Hen. 8, 15. Also a man is excused if he takes a ship or goods
by a legall commission in time of war or by reprisalls ; but other-
wise he shall be esteemed a pirate ; and pirates are so odious in
the eye of the law that they are adjudged the enemies of man-
kind ; he is out of the protection of all laws, shall neither have
benefit of clergy or benefit of sanctuary, but wherever taken
shall be judged to death whatever country he is of.
In time of war a man may seize and despoyle an enemie with
or without commission, and is bound to give an account to his
prince only, provided no . . . against the usage of war be com-
mitted. Commissions of reprisall are granted, a debt being doe
or wrong done, and complaint being made thereof for redress to
those who did the wrong, and no satisfaction being made or
unjustly (?) detained for the same ; but then he that obtains this
commission must take care that his commission be valid, that he
hath a just debt and that he is not satisfied, that his commission
be not forfeited, that goods be not embezeled before judgment, for
concealment of goods before they are judged prize is a forfeiture,
and if his commission be any way void or be forfeited he shall be
judged a pirate.
Tou are also to enquire into confederacies ; and first into con-
federacies among workmen that will not work but at a great rate
[(1) Marly, tit. Murder, felony.]
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COURT OP DELEGATES. 257
and at a certain time, and the like confederacies among mariners I68O
upon or beyond the seas in not performing or refusing to go the
voyage, in opposing their masters, for these are within the statute ;
confederacies among foreigners in not paying or refusing to pay
the respect due to the king's flag ; (for this there was not long
since taken a Fleming and tryed by this Court, and here fined
£500) ; confederacies among such as will not allow the king the
right of safe conduct within his chambers, which are lines drawn
by imagination in the sea from one point to another, within
which all friends and allies are to be in safety and under His
Majesty's protection. Anno 1604 the chambers and their limits
were stated, within which 'tis a violation of ... . not to allow
the king power of safe conduct ; and if two ships are fighting and
the king's ship shall interpose, they are immediately to cease
fighting.
You are to enquire further of nusances against the statute,
whether they be in any rivers or salt waters bordering upon any
county, and particularly upon the county of Surrey, such as obstruc-
tion of navigation and destroying of the fry of fish.
Tou are to enquire of abuses against the statute of 5 Eliz. 5 ;
abuses against the constitutions for the maintenance of the navy ;
abuses in fishing, as fishing with unlawfull nets and taking of
nnsizeable fish.
You are to enquire of forestallers, ingrossers, regrators, and all
offenders upon the water against the statute 5 Ed. 6, 14 ; you are
to enquire of such as use fSalse weights and measures ; of the ofiScers
of the customs or others that pretend to gratuities for executing
their ofiSce; and of all pretences (?) to defraud the king of his
customes ; of such as seize or embezell goods wrecked ; now you
must understand that it is never accounted a wreck where any
creature escapes alive ; you are to enquire after .... and such
as pretend to assist a ship in distress and under that pretence to
filch or carry away goods, and such salvors who do not do their
duty ; but you are to consider the salvors ought to have salvage
according as they shall have deserved ; of defrauding of customs
within the jurisdiction of the Admiralty. You are to enquire of
such masters or mariners who, meeting with Turks, do not do their
duty, but refuse to fight and so transgress against the statute of
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258 RECORDS— HIGH COURT OF ADMIRALTY.
1680 16 Car. 2, 6 ; of mariners laying violent hands on their master,
" which is felony.
There are severall other offences against statutes the particulars
whereof it is not necessary to mention, but this may serve you in
generall, that whatever offences are against any statute and com-
mitted upon the sea and within the jurisdiction of the Admiralty,
the same are enquirable here by you ; and this, in short, is suf-
ficient for your instructions in making the first part of your
enquiry, viz., of offences committed against any statute.
Now the second part of your enquiry is of transgressions against
the ancient laws and customs of the Admiralty, such as are those
relating to the flag; and in this enquiry you are to be very
ciirefuU, for thereon depends the honour of the nation, and if
this be lost, all sovereignty and dominion will be lost, and conse-
quently trade ; and thereupon you are to enquire whether com-
manders do their duty in requiring the respect due to the king's
flag.
You are to enquire of merchants wearing the king's colours,
and of merchants approaching the king's flag not giving due
rospect.
You are to enquire whether in the last war any one delivered
up enemies taken without the king's privity; to enquire of
4 - . . ; pety larceny ; of buying of prize goods when taken of
our allies provided against by a particular treaty, and by the
constitution of the Admiralty ; of unskilful pilots who cast away
ships and are still punishable according to the course of our law
and anciently by death; of filtching and stealing bumboats;
whether watch and ward be carefully kept; and for the due
observance of this great care was taken in former times, for a
foreigner being robbed in the night the Admirall seized on those
next about him and made t&em make satisfaction ; you are also
tu enquire of masters not treating mariners humanely ; and of
severall other things which for brevity I omit ; and the rather
do it because these are instructions for you to make your present-
ment ; and thereupon I shall only add you are upon your oaths,
and that it is your and the nation's interest to make a diligent
enquiry, for under God the flourishing of trade and navigation is
our greatest interest, and that it is to be preserved by presenting
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COURT OF DELEGATES. 259
all transgressions and offences contrary to the laws and patting 1680
the laws in execution.
Our strength depends upon our navigation, our navigation
upon discipline, that our laws may have the effect intended them
by divine appointment and the publick wisdom.
WATEEHOUSE v. THE CATHERINE. i^si
Action by holder of bottomry bond, material-man intervening. Held by the
Admiralty Court that the material-man be preferred to the bottomry-man. On
a subsequent day the Court was prohibited from proceeding in the matter of
the material-man. See Admiralty Assignation Book, 13th May, 1681.
Baniford Waterhause contra dictam navem {The Catherine) et
peconias, &c.
Lee, Smkley, Franklin, Smith, Exton.
Lee prayed the moneys to be decreed out to his clyent, Smith
dissenting and praying like for his party ; and the Judge
declared that Mr. Lee's, being a materiall-man, ought to be pre-
ferred before the bottomry-man, and decreed the moneys out of
Court, Lee giving baile as usuall to Lee's clyent. Smith dis-
sentient, et salva reverentia appelland, &c. &c. &c.
30th May, 1681. — Prohibitio introducta fuit in aurora per
Johannem Bateman quoad pecunias per Eanifford Waterhouse,
petitas, nempe £22 lis. Id. pro sorte principali et£4 pro expensis
tazat
THE NEPTUNE. i682
Protest (?). The following entry appears in the Admiralty Court Assignation
Book mider the date 15th Nov. 1682. Other cases with similar titles occur about
this period.
Negotium probationis damni ratione procellarum sive tempes-
tatum quoad navem The Neptune de London et bona in eadem
onusta in cursu suo navali a portu Hamburgen, ad hunc portum
Londini contingen. Necnon dimiss. proprietar. magistri et naut.
dictad nayis (1) promotum per Laurentium Thompson et socios
magistri (mc) et proprietaries dictsB navis contra Willimum
[(1) The words a damno here occur in some of the cases.]
S 2
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260 RECORDS— HIGH COURT OF ADMIRALTY.
1682 Frewen (?), Willimum Grarrer, Petrum Vansittard, et Andieam
56lMNHPTiiBrE. Bo veil (?) et socios, dictorum bonorum oneratores.
I6fi2 WEENAM V. CHUECHWOOD.
The following entry, dated 20th Dec. 1682, appears in the Admiralty Court
Assignation Book. The action seems to have been by shipowner against the
master and mate in personam. No appeal.
Gulielmus Wemam, Gulielmus Cooke et socii proprietarii navis
IhB John de London contra Niclum. Church wood magistrum dictsB
nayis et Isaacuin Chessell socium dicti magistri.
Brodrick. Bach {?). Barret- (f). Tuckyr {f).
Which day the said Wm. Wemam and John Lucas, amongst
others part owners of the said ship, appeared and were sworn and
deposed that the owners of the said ship (had) good cause of
action against the said Nicholas Church wood and Isaac Chessell
in £300 sterling as they believe.
Here enter the baile art.
Et tunc dominus ad petitionem Broderick assignavit ei ad
dand. libellum in diem Veneris prox. in aurora &c. in praesentia
Barret et Tv^hyer dissent.
lesS PEOHIBITIONS.
According to a note in a contemporary handwriting, prohibitions were sent
from the King's Bench to the Court of Admiralty in Michaelmas Term, 1683,
in the following cases (see Admiralty Court papers at the Record Office).
Wm. Middleton and others against the ship ProsperoWy and
John Allison, master.
Gover and others against tlie same ship and another ship-
wright.
Peake against a moiety of the ship Providence and John Whit-
field, master.
Clarke and Marshall and others against The John and Hannah
(material-man).
The Mercluints* Adventure,
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COUBT OF DELEGATES. 261
EEX V. SIBBERNES. 1687
Monition to fisherman not to dredge for oysters ; Ad. Gt. Assignation Book,
2l8t Nov. 1687.
Serenissimus Dominus noster Bex contra Nathlem. Sibbemes
piscatorem.
Franklin. Smith.
Which day W. Andrewes appeared on behalf of the said
Nathaniel Siffers, alias SibbaruSy and did declare that hee did
believe that every fisherman that is a dredger in Bumham
river is gnilty of an abuse in fishing there, as well as is the said
Nathaniel Sibbemes, and undertook that hee, the said Nath.
Sibbemes, should speedily appeare to give in his answer.
Eodem die coram Domino, &c., in ejus camera, &c., praesente
Ric. Crawley, M.R
S. D. Rex con. Nath. Sibbems piscatorem.
FranJdin. Sayer. Smith.
Which day appeared personally Nath. Sibbemes and submitted
himselfe to the jurisdiction of this Court.
Tum Sayer ex abundan. dedit articulos alias .... ex parte
S. D. N. Regis dates, quos Dominus ex ... . admisit.
Tum Smith produxit dictum Nath. Sibbernes qui obtulit se
promptum ad respondend. (?) eisdem.
To the first he answereth that some time about the 20th of
July articulate he heard of the custom articulate from Thos.
Barnes Stevens and John Creeke, deputy es, as he believes, to the
company of fishermen, and that he was about the same time
warned from dredging for oysters by them within the river
articulate.
Ad secundum respondet, that after his being wamed he dredged
for and took about twenty or thirty bushels of oysters within the
time articulate, and that the oysters he soe took were out of a
breeding part of the river and laid the same into a feeding part
to make them fit for the market ; some whereof he sent and sold
at Billingsgate about the latter end of August and since, and
those as he sold were sizeable ware, and that he sold them accord-
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262 RECORDS— HIGH COURT OF ADMIRALTY.
1687 ing to the bill in schedulate measure (?) at about seven shillings
Ebx per bushell, one with another.
BrBBomEa ^^ tertium respondet, that he believes the oysters doe spatt
and spawne from the beginning of May to the latter end of July
and not longer, and this he heard from some of the most ancient
dredgers of his acquaintance, and so doth believe, and that the
dredging for oysters in the time of their spatting, in the respon-
dent's opinion, is not prejudiciall to them, for that it cleanseth
tlie ground, and in a right yeare for spatting it rather doth them
good than hurt to remove them.
Ad 4 m. refert se adjura.
Ad 5 m. respondet, &c., eundem esse verum.
Whereupon the Judge monished Nathaniel Sibbemes for the
future not to dredge for oysters in the river of Bumham alias
W allfleete from the 29th of July to the 14th of September yearly ;
et solutis feodis (?) curiae qu. Dominus reservavit ad taxand.
illmisit dictum Nath. Gibberues ab instantia et impetitione, &c
^^7 THE SUSSEX.
The foUowlDg is an example of the ordinary form of title of a possession
»uit during the seventeenth and eighteenth centuries. Admiralty Court Assig-
nation Book, 1st May, 1687.
Negotium reparationis et ad mare emissionis navis cujusdam
aiitcihac vocatee The Sussex nunc vero The Levanteen (cnjns
Johannes Melbourne est magister), ejusque, &c., promotum per
Dominum Dudlein North, Dominum Johannem Lethulior (?),
Pominum Edvardum B , Johannem Delem, Johannem
Lethulier, armig., et socios, proprietaries ^ partium dictte navis
ejusque, &c., et Hugonem Strode proprietarium -3*^ partis dict»
BAvis ejusque &c., et contra omnes, &c.
tm BROOKE V. STRADTLANDER.
Suit for price of ballast supplied to the Orange Tree, Decree for amount due.
No appeal. Ad. Ct. Assign. Book, 3rd March, 1691.
Domina Martha Brooke alias Tomlinson, nuper Domina Roberti
Brooke Baronetti, relicta et administratrix bonorum et Christo-
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COURT OF DELEGATES.
PleydeU,
Roberts.
Dominns final! interloqnendo pronounced there were five tons
of ballast more than was paid for, and condemned Roberta^ clients
in \Qd. for each ton. PleydeU porrexit billain expensarum.
Dominus taxayit eandem ad £5, &c. &c.
263
pheri Tomlinson defuncti contra navem The Orange Tree de I601
Bremen cujus Ar. Stradtlander est magister, ejusque, &c., ac Bbooke
contra dictum Stradtlander et socios pro interesse suis inter- st^dt.
venientes. lander.
THE ANN OF MOSTEIN.
The following note of a suit for collision between the Ann of Mostein and the
Charles is taken (^verbatim) from a collection of manuscript notes in the British
Museum (Additional MSS. 24102, p. 91). The collection, contained in two
small volumes, appears to be in the handwriting of Sir Charles Hedges, Judge
of the Admiralty Court, and the notes seem to have been made by the Judge in
court (1). The decision is remarkable — that both ships were in fault, and the
Charles most in fault — and that therefore the Charles could recover nothing.
The Ann of Mostein and the Charles came foul one upon the
other in St George's Channell ; the Charles came directly down
the wind while the Ann almost contrary. The Charles was sunk.
The mariners of the Charles say they were on deck, and the Ann
in fiiult. The other side quite contrary. A passenger on board
the Charles says that there was no mariner on deck, also it
appeared that the Ann had a light, and not proved by the Cliarles
that she had one.
I consulted Trinity masters upon the facts. They concluded
from the posture of the circumstances :
1. That if the An/n had a light it could not be seen.
2. That neither had a man or men at the head or at the bolt-
sprit head, as ought to have been in dark weather ; so both
in fault.
3. That the Charles, if had done duty by having man to see,
might easily put out of the course and avoided coming with
[(1) The present writer is indebted to his friend, C. F. Jemmett, Esq., for the
reference to this collection.]
1691
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MOffTEIN.
284 RECORDS— HIGH COURT OF ADMIRALTY.
5^1 the wind and tide, but the Ann could not without diffi-
Hm Ahm of culty ; and that the Charles in the greatest fault, because
she is to make way, and if in daytime must make way for
another coming against wind and tide.
Of opinion that the Charles in greatest fault, and that cannot
recover, but if counsell (?) desire then to hear the law in the case
and to upon the point.
The following is the note of the decision in the Assignation Book (5th May,
1 09 1). There was no appeal.
Joh. Balls proprietarius navis The Charles of Chester contra
navem The Anne of Mostein, cujus Thos. Roberts est magister,
ej usque, &c., ac contra dictum Roberts et socios pro interesse suis
interyenientes necnon dictum Roberts in causa damni.
Exton. Franklin.
Quo die procures hincinde petierunt sententias per eos 26ti
J\Iartii ultimi prseteriti porrectas pro partibus respective suis ferri,
ac jus, &c. Dominus auditis advocatis et procuribus hincinde
liabitaque matura consideratione totius negotii, legit tulit ac
promulgavit sententiam Franklin porrectam pronunciando de-
cemendo declarando dimittendo caeteraque faciendo prout in
e^dem continetur.
^^ TREW V. PEIRCE.
THE MART OF POOLE AND THE MART OF WEYMOUTH.
Suit for collision between the Mary of Poole and the Mary of Weymouth,
Hiile as to division of loss applied by Sir C. Hedges. The collision was in
Rfunsgate Roads ; the Mary of Weymouth brought up to windward of the Mary
of Poole and drove foul of her. The value of the latter was alleged to be less
tban £50. Ad. Ct. Assignation Book, 7th July, 1692.
Ad audiendum voluntatem Domini super actus. Exhibitorum
ad petitionem Miller et ad sententiam ex secunda ad petitionem
Sayer.
Edwardus Trew magister et socii proprietarii naviculas The
Mary of Poole, ejusque, &c., ac bonorum in eadem onustorum
contra nayem The Mary of Weymouth (cujus Petrus Peirce est
magister) ejusque, &c., ac contra dictum Peirce in specie necnon
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COURT OF DELEGATES. 265
Thomam Hyde pro interesse suo intervenientem ac contra dictum ^692
Peirce in causa civili, &c. Tbbw
Sayer. Miller.
Probationibus perlectis Miller porrexit sententiam. Sayer
allegayit intentionem suam esse fundatam ; et Dominus ad ejus
petitionem finaliter interloquendo pronunciavit veram medietatem
damni in hac parte liquidand. esse partibus Sayer debit, et
condemnayit partibus Miller in dicta medietate ; Miller dissent,
et salva reyerenti^ ad statim appellandi ; et Dominus assignavit
MSler ad prosequendum et ad certificandum die sup. in istum
diem ad duas horas.
The following is the Act on the file.
Quo die Sayer petiit banc causam ad statim audiri ac jus, &c.y
dari in praesentia Miller dissent, et porrigentis sententiam in
scriptis conceptam quam petiit ferri ac jus, &c. Unde Dominus
auditis probationibus in hac causa fectis ac advocatis et procuribus
hincinde habitaque matura consideratione totius negotii finaliter
interloquendo ad petitionem dicti Sayer pronunciavit prsefatos
Edyardum Trew et socios fuisse tempore libellato veros et legi-
times proprietaries naviculae yocatsB The Mary of Poole ejusque
apparatuum et merciorum ac omnium et singulorum bonorum in
eadem tempore libellato in eandem {sic) impositorum dictamque
nayem cum onere suo herba nicotiaria ex maxima parte onustam
aliisque bonis impositis a portu de Poole Londinensem versus
yelificaturam super altum mare et infra jurisdictionem mari-
timam ad anchoram jacuisse dictamque nayem The Mary of Wey-
mouth etiam ad anchoram in conspectu dictse nayis The Mary of
Poofe jacentem eandem nayem The Mary of Poole obviam dedisse
et casu fortuito in alterutrum provectas fuisse ac inyicem per-
cussisse, dictamque nayem The Mary of Poole ejusque, &c. cum
onere suo praedicto ratione ejusdem percussionis penitus obrutam
perditam et submersam fuisse ac esse, praefatosque Thomas Hyde,
proprietarium nayis cujusdam yocatae The Mary of Weymouth, ex
eo quod sibi constat dicto nayi coUisionem ex Thomae Peirce
magistri et nautarum suorum culpa et negligenti& quadamtenus
pervenisse eidemque merito imputari posse ac de jure debere ad
certam damni in hac parte imposterum liquidandi partem luendam
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266 RECORDS— HIGH COURT OF ADMIRALTY.
icfl2 et exaolvandam condemnandos fore de jure debere etiam pro-
nunciavit, eosdemque in medietate sive media parte damni in hac
parte sustenti ratione percussionis et coUisionis dictae navis The
Mary of Poole ac imposterum liquidandi condemnavit ; liqui-
dationem vero dictorum damnomm reservavit, et assignavit ad
Qudiendum yoluntatem suam desuper in istum diem ad duas
septimanas (?), dicto Miller dissentiente, protestante de gravamine
et ad atatim appellandi ad S. D. N. Begem et Reginam ; et cui
Bomiaus differendo appellationis prsedictae assignayit ad pro-
seqiioad. appellationem et ad certificand. desuper in eundem
diem J eo dissentiente.
See Act Book, fol. 292. The case was appealed by Peirce on behalf of the
Mtirtj fif Weymouth^ but the appeal appears to have been abandoned; see
Pele|?iite« Assignation Book, 4th May, 1693, nom. Peirce et Hyde v. Trew.
Tlie iuhibition is amongst the Admiralty Court records.
Tho following titles of actions in rem and in personam are taken from the
AdmiraUy Assignation Book.
%m FEAVOUR v. WHITE.
11th Nov. 1692. Action against ship and master.
ITearicus Feavour contra navem The Rebecca of Weymouth
(cujim Henricus White nunc est vel nuper fuit magister), ejusque,
&«», ad se spectant, ac contra dictum White et quemdam Thomam
Hyde in specie ac omnes, &c., ac contra dictum Hyde in causa
rivili* &c.
^^ PAPILLON V. HYDE.
21st Nov. 1692. Shipowners against Hyde for damages.
Thomas Papillion, Elias Depuy, et socii proprietarii navis The
Bourdeaux Merchant (cujus Laurentius Sherman est magister),
ejusfjue, &c., contra dictum Robertum Hyde in causa damni, &c.
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COURT OF DELEGATES. 267
EWBANCK V. MILBOURNE. 1692
8th Dec. 1692. Owners of the Providence against the Ch'trity^ and against
the master of the Charity.
Bichardns Ewbanck magister et socii proprietarii navis The Prch
videnee, ej usque, &c. contra navem The Charity of South Shields
(cujus Joshua Milboume est magister) ejusque, &c., ac contra dic-
tum Joshuam Milboume et socios pro interesse suis intervenientes
ac contra dictum Milboume in specie ac in causa damni, &c.
POLICY OP INSURANCE. 1692
The following policy of insurance on the cargo of the Maria, dated 29th June,
1692, is taken from the Admiralty Assignation Book lahelled 337.
In the name of God, Amen. Peter Joy of London, merchant,
as well in his own name as for and in the name and names of all
and eyery other person or persons to whom the same doth may
or shall appertain in part or in all doth make assurance and
causeth himself and them and every of them to be insured lost
or not lost from Stockholm to London, upon any kind of goods
and merchandizes whatsoever loaden or to be loaden aboard the
good ship called the Mcma, burthen .... tuns or thereabouts,
whereof .... is master under God for this present voyage Bary
master or whosoever else shall go for master in the said ship, or
by whatsoever other name or names 'the said ship or the master
thereof is or shall be named or called ; beginning the adventure
upon the said goods and merchandizes from and immediately
following the lading thereof aboard the said ship at Stockholme,
and so shall continue and endure untiil the said ship with the
said goods and merchandizes whatsoever shall be arrived at
London and the same there safely landed. And it shall be law-
full for the said ship in this voyage to stop and stay at any
ports and places between Stockholme and London, without pre-
judice to this insurance. The said goods and merchandizes by
agreement are and shall be valued at ... . sterling without
farther accompt to be given by the assureds for the same.
Touching the adventures and perils which the assurers are con-
tented to bear and do take upon us in this voyage they are of
the seas, men-of-war, fire, enemies, pirats, rovers, thieves, jette-
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268 RECORDS— HIGH COURT OF ADMIRALTY.
sones, letters of mart and conntermart, surprizals, takeings at
EwBJUi-cx sea, arrests, restraints and detainments of all kings, princes, and
jInjwuTi>n!r P^^pl® ^^ ^'^^ nation, condition or quality whatsoever, barratry
of the master and mariners, and of all perils, losses, and mis-
fortunes that have or shall come to the hurt detriment or
damage of the said goods and merchandize or any part thereof;
and in case of any loss or misfortune it shall be lawfull to the
assured .... factors servants and assigns to sue labour and
travel for in and about the defence safeguard and recovery of
the said goods and merchandizes or any part thereof without
prejudice to this insurance, to the charges whereof we the
assurers will contribute each one according to the rate and
quantity of his sum herein assured. And it is agreed by us the
insurers that this writing or policy of assurance shall be as much
force and effect as the surest writing or policy of assurance
heretofore made in Lombard Street or elsewhere in London.
And so we the assurers are contented and do hereby promise
and bind ourselves each one for his own part, our heirs, executors
and goods to the assured .... executors, administrators and
assigns for the true performance of the premises, confessing our-
selves paid the consideration due unto us for this assurance by
Ditto Joy after the rate of three pounds per cent.
In witness whereof, we the assurers have subscribed our
names and sums assured in London.
Memorandum. — The assurers do hereby covenant, promise and
oblidge themselves, their heirs, executors and goods in case of
loss happening (which God forbid) to satisfie and pay their
severall sums of money herein assured upon the abatement only
of ten pounds per cent and no more, provided always that they
pay their respective sums of money by them assured according
to subscription within one month after .... otherwise no abate-
ment whatsoever to be made, but to pay their full sums accord-
ing to each man's subscriptions, any use or custom to the con-
trary notwithstanding. Written the day above said
II, John Berry, am content with this assurance which Crod
preserve for one hundred pounds this 29th June, 1692,
praemio reed.
(Here follow eleven other signatures, for £700 in all.)
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COURT OF DELEGATEa 269
RAWLINSON V. PAGAN. i693
Wages. Decree against a part owner of the ship for a proportionate part of
the wages sued for. No appeal. Ad. Ct. Assignation Book, 28th September,
1693.
Swan Bawlinson Hans Johnson et socii nuper nautse navis
Tocatae The Merchants* Adventure, cujus Thomas Webb jam (?)
defonctus nuper fuit magister, contra Petnim Pagan nuper
proprietarium -^ partis dictsB nayis, ejusque, &c.
Bayer. Barrett.
Ad audiendum banc causam sumarie .... ad petitionem
Sayer.
Dominus finaliter interloquendo ad petitionem Sayer pro-
nunciayit salaria fuisse et esse de jure debita to the time of the
delivery juxta probationes, et Petrum Pagan ^ partem eorum
salariomm petitorum qua (?) proprietarium ^ partis dictse nayis
solvere debere; et condemnavit dictum Pagan in expensis;
super taiLationem in prox.
STEONG V. TEESDALE. i694
THE SUCCESS AND THE BONADVENTURB.
Personal action (for collision?) by the owners of the Success against the
captain of the Robert Bonadventwe. Ad. Ct. Act Book, 5th July, 1694.
Guliebnus Strong et Gulielmus Franklin nuper proprietarii
navis The Successe (cujus Petrus Eame fuit magister) ejusque -
&c, et bonorum in eadem, Ac.^ contra Bobertum Teesdale
capitaneum navis The Bobert Banachenture.
SnUih. Barrett.
An interlocutory decree dismissing the action with costs was made by
Sir C. Hedges, 6th July, 1694. In the volume of MSS. notes by Sir C. Hedges
referred to above (p. 263) is a note of a case. The Success and The FriencTs
Adventure^ ** action dismissed ; no fault proved.'* The date of this note is,
however, 21st November, 1692.
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270 RECORDS— HIGH COURT OF ADMIRALTY.
^^^ BECKHAM V. CHAPMAN.
THE LITTLE BETTY AND THE JONAS.
Collision. Rule of division of loss applied. No appeal. Ad. Ct, Assignation
Book.
Jacobus Beckham et socii proprietarii navis The LiUle Betty,
of London, contra iiavem The Jonas, of Whitby (cujus Jacobus
Chapman est capitaneus), ejusque, &c., et contra dictum Chapman
in specie necnon contra Henricum Lindskill et socios pro intereeae
in eisdem intervenientes.
Roberts. ExUm.
Procuratores hincinde porrexerunt sententias quas respective
petierunt ferri, ac jus &c. Sed (?) Dominus (1) finaliter inter-
loquendo pronunciavit ob incertitudine probationum, &c., partes
Exton partibus Roberts solvere debere unam medietatem damni
in hdc parte sustenti, damnumque . . . extendisse ad £433 16s. Od. ;
ideoque condemnavit partes Exton in summa £226 18s. Od. legalis
&c., cum (?) expensis ; voluntatum sup. tax. damni in prox. ad pet
Roberts.
15th February, 1695. Monition and attachment against parties and bail, to
pay £25, the whole of Roberts' costs and damages.
The note in the Act Book (folio 337) of the interlocutory decree is in similar
terms to that in Ti^ew v. Feiree, supra, p. 264, except that after finding that the
collision was caused by the negligence of those on board the Jonas, it proceeds
as follows : —
Ideoque prsefatos Henricum Linkskill et socios
proprietarios ejusdem navis The Jonas of Whitby ad certam damni
in hac parte liquidandi partem luendam et exsolyendam condem-
nandos fore de jure debere pronunciavit. Cum antem ob incerti-
tudinem ex varietate et contrarietate depositionum testium
hincinde examinatorum proveniente certa pars damni quota est
quam altera pars alteri dedit liquidari baud possit Dominus
Judex antedictus dispositionem juris maritimi apud omnes recep-
tionem sequens praefatum Henricum Lindskill et socios, partes
Exton, unam medietatem damni in hac parte sustentis dicto
[(1) Sir Charles Hedges.]
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COUKT OF DELEGATES. 271
Jacobo Beckham et sociis, partibns Boberts solvere debere pro- ie95
nunciavit damnumqne praedictum ad summam quadringentanim bbckhui"
qmnquagintanun trium librarom et aexdecim solidorum legalis chapman.
monetaB Angliae extendisse etam pronunciayit. Idcirco dictos theLittlb
Jacobam Lindskill et socios in summa ducentarum viginti sex li- x^^onaa
bramm et octodecim solidorum legalis, &c., pro damno praedicto,
ac etiam in expensis, condemnavit ; et assignavit ad audiendum
volontatem suam super taxatione dictamm expensarum in prox.
&c., in praesentia, &c. ; Eoeton dissent &c.
DOVE V. MASTERS. i696
THE ELIZABETH AND THE ELEANOR. "
CollisioD. Defendants dismissed without costs. Ad. Ass. Book, 4th March,
1696 ; Ad. Act Book, foL 499. Upon appeal the decision of the Court below
was affirmed; see Delegates' Assignation Book, 22nd June, 1698, inhibition,
and the Delegates' sentence.
Henricus Dove, Johannes Dennis et socii, proprietarii navis
The Elizabeth (cujus Radulphus Jackson fuit magister) contra
navem The Elinor, of PortsmotUh (cujus Johannes Pate est
magister), ejusque, &c., et contra Marcum Masters et socios pro
interesse, &c
Sayer. Boheme.
Bayer petiit pronunciari pro damno libellato. Boheme porrexit
sententiam dimissoriam. Dominus (1) legit eam
clausula quoad expensas prius deleta. Sayer protestatus est de
giavamine.
The case was appealed. In the inhibition (the original document, engrossed
on parchment and dated lOth of February, 1697, is extant) the appeal is stated
tobe:—
. . . . Et praBsertim a quadam praetensa sententifi diflBnitiva
pro parte et in favorem dicti Marci Masters et sociorum et dicti
Johannis Pate et contra praefatos Henricum Dove, Johannem
Dennis, et socios in dicta causa lata et promulgata ejusque asserta
prolatione et ab omnibus et singulis exinde sequentibus, &c.
&c. &c
[(1) Sir C. Hedges.]
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272 KECOBDS-HIGH COUBT OF ADMIRALTY.
1696 The result of the appeal is stated in the Delegates' Assignation Book, 22Dd
June, 1698 :—
DOVB
^, ^' Dove et socii contra Masters et socios et Pate.
Mastebs.
The Eliza- ^y r> l
BETH AND oayBT, JtSofieme.
Quo die procures hincinde porrexerunt sententias quas pro
partibus respective suis petierunt ferri. Domini legemnt sen-
tentiam per Boheme porrectam remissoriam, condemnando in
expensisy quas taxarunt ad summam triginta librarum legalis, &c,
solvend. triginta dies post monitionem sub poena.
The Delegates' sentence, engrossed on parchment, exists. It is as follows :—
In Dei nomine, Amen. Auditis visis et intellectis ac plenarie et
mature discussis per nos Thomas Eokeby Militem unum Jnsti-
ciariorum Domini Begis ad Placita coram ipso Bege tenenda
assignatorum, Johannem Turton Militem alteram Justiciariomm
Domini Eegis ad placita coram ipso Bege tenenda assignatorum,
Johannem Bleucowe unum Justiciariomm Domini Begis de
Banco,. Georgium Oxenden Legum Doctorem Almae CuriaB Cant,
de Arcubus, London, Officialem Principalem, Henricum Newton,
William King, Johannem Cook, et Johannem Bridges, Legum
Doctores, in causa infrascripta atque inter partes inferius nomi-
nates Judices Delegatos Begios legitime constitutos Mebitis et
circumstantiis ejusdem causae AppeUationis et querela quie coram
nobis in judicio inter Henricum Dove, Johannem Dennis et
Socios nuper proprietaries navis nuper vocatse The Elizabeth of
London (cujus Badulphus Jackson nuper fuit magister) ejusque
apparatuum et accessionum partes appellantes et querelantes ex
un& et Marcum Masters et socios proprietaries navis vocatae The
Eleanor of Yarmouth (cujus Johannes Pate est magister) ejusque
apparatuum et accessionum partes appellatas et querelatas par-
tibus ex altera vertitur et pendet indecisa Bite et legitime
procedentes, partibusque prsedictis per earum respective procu-
ratores coram nobis in judicio legitime comparentibus, par-
tesque prsefatoram Marci Masters et sociorum sententiam
ferri et justitiam fieri pro parte sua parte vero memoratonun
Henrici Dove, Johannis Dennis et sociorum sententiam etiam
pro parte sua instanter respective postulantibus et petentibus;
BiMATOQUE primitus per nos toto et integro processu alias coram
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COURT OP DELEGATES. 273
nobis in hac parte habito et facto ac diligenter recensito. Servo- 1696
Usque per nos de jure in hac parte servandis ad nostraB sententise povs
definitivsB sive nostri finalis decreti in hujusmodi caus& ferendaB j^j^^i^r^s,
prolationem sic duximns procedendum fore et procedimus in thbEltza-
hnnc qui sequitur modum, Th^kIi^^ob.
Quia per acta inactitata deducta allegata exhibita proposita
probata pariter ac confessata in hac causa comperimus luculenter
et inyenimus partem prsBfatorum Henrici Dove Johannis Dennis
etsociorum intentionem suam in quodam Libello Appellatorio
ex parte sua in hujusmodi causa dato et admisso penesque Begis-
trom hujus curiae remanente deductam (Quem quidem Libellum
pro hie lecto et inserto habemus et haberi yolumus) minus sufiS-
cienter esse ad plenum (quoad infra pronuncianda) fundasse aut
probasse sed in probatione ejusdem defecisse penitus et deficere.
Idcirco nos Judices Delegati Begii antedicti Christi nomine
primitus invocato ac ipsum solum Deum oculis nostris prae-
ponentes et habentes deque et cum consilio Jurisperitorum cum
quibus in hac parte communicavimus matureque deliberavimus
male et sine aliqua causa saltem legitime ex parte et per partem
antedictorum Henrici Dove Johannis Dennis et sociorum in hac
parte ad Illustrissimum in Christo Principem ac Dominum
nostrum Dominum (sic) Gulielmum Tertium Dei Gratia Angliae
Scotiae Franciae et Hibemiae Begem Fidei Defensorem, &c.,
ejusque supremam curiam Cancellariae Angliae appellatum et
querelatum fuisse ac esse, Appellationemque et querelam hujus-
modi ex parte dictorum Henrici Dove Johannis Dennis et
sociorum in hac parte factas et interpositas minus veras justas
et legitimas ac ex causis minus yens justis et legitimis factas et
interpositas proque nullis et invalidis ad omnem juris effectum
pronunciamus decemimus et declaramus, necnon bene rite et
legitime per Judicem a quo extitit in hac parte appellatum et
querelatum processum pronunciatum decretum et sententiatum
fuisse ac esse etiam pronunciamus decemimus et declaramus,
sententiamque definitivam per Judicem a quo extitit in hac
parte appellatum et querelatum in hac parte latam et promul-
gatam et ad omnem juris effectum ratificamus et confirmamus
per praesentes. Heme igitur causam una cum incidentibus emer-
geatibus dependentibus annexis et connexis quibuscunque Judici
T
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274 RECORDS-HIGH COURT OF ADMIRALTY.
1696 a quo extitit in hac parte appellatiim et querelatum ejusqne
DoYB examini remittendam fore et remitti debere, eundemque Judicem
MASTE3t3 ^ ^^^ extitit in hac parte appellatum ad ulterius in eadem pro-
Tm Eliza^ t^edendum juxta juris exigentiam et formam retroactorum (Inhi-
T^Ei^AiroE. ^itioi^® quacunque antehac ab hac curia in contrarium emanata
in aliquo non obstante) licentiandum fore et licentiari debere pro-
nunciamus decernimus et declaramus sicque remittimus et lieen-
tiamus per prsesentes PrsefcUosqite Henricum Dove Johannem
Dennis et socios in expensis legitimis ex parte et per partem
dictorum Marci Masters et sociorum in hac parte factis et Caciendis
eisdemque sen eorum parti solvendis condemnandos fore et con-
denmari debere pronunciamus sicque condemnamus, easdemque
expensas ad summam triginta librarum legalis monetae Anglias
taxamus et moderamur, eosdemque Henricum Dove Johannem
Dove et socios non solventes summam prsetaxatam sub mode et
forma suprascriptis monitione legitima precedente eorumque in
ea parte contumacia subsequente exnunc prout extunc et extonc
prout exnunc arrestandos et per scapulas capiendos ac in custodia
detinendos donee et quousque dictam summam solverint decer-
nimus et adjudicamus per banc Nostram Sententiam definitivam
sire hoc nostrum finale decretum quam sive quod ferimus et
promulgamus in his scriptis.
S. Waller (?) Thos. Eokeby.
Tho. Lane. Jo. Turton.
Jo. Blencowe.
Geo. Oxenden.
Hen. Newton.
GuL. Kma.
J. Cooke.
J. Bridges.
ita teatfiT (Endorsed) Lata et promulgata fuit sententia retroscripta per
NnrPubia!^^ Judices Delegates in eadem memoratos vicesimo secundo die mensis
Bvipi Depiufl. jiiQii Anno Domini millesimo sexentesimo nonagesimo octavo
in Aula publica Hospitii Dominorum Servientium ad Legem in
Tico vocato Fleet Street, London, inter horas quartam et nonam
l^ostmeridianas ejusdem diei in prrosentia mei Thomae Cantrell
Notarii Publici Eegii Dep" ac testium in actis desuper factis
uominatorum.
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COURT OF DELEGATES. 275
STRINGEE V. BROWNE. ig96
THE TBUE LOVE AND THE HOPEWELL.
Collision between the True Love and the HoperveU, Sir C. Hedges, Judge of
the Admiralty, pronounced that the plaintiff had failed to prove his claim. Upon
appeal the sentence of the Admiralty Court was reversed, and the Hopewell
found to be alone in fault. Ad. Ct. Ass. Book, 22nd May, 1696 ; Act Book,
fol. 374; Delegates' Ass. Book, 27th January, 1696 (1697); Delegates' Pro-
cesses, voL 218 ; Delegates' Sentence.
Gulielmus StriBger proprietarius navis The True Love of Lyn
(cnjus Bobertus Mason nuper fait magister), contra navem The
Hopewell de Lyn (cujns Thomas Browne est magister), ejnsque,
&c., et contra dictum Browne et socios pro interesse suis inter-
venientes,
Lee. Boherta.
Lee porrexit sententiam, quam petiit legi.
Roberts petiit partes sufis dimitti. Dominus finaliter interlo-
quendo ad petitionem Bcherts pronunciavit partem Lee defecisse
probationibus et dimisit partes Roberts cum expensis. Volunta-
tem super taxat. earum in prox. Lee protestatus est, &c.
The entry (fol. 874) in the Act Book is as follows : —
Quo die Lee porrexit sententiam in scriptis conceptam, quam
petiit legi et ferri ac jus, &Q.y in praesentia Roberts dissent, et
petent. partes suas dimitti ac jus, &c. Undo Dominus, auditis
prius adyocatis hincinde ac perlectis probationibus in hac causa
factis, habitaque matura consideratione, totius negotii finaliter
interloquendo ad petitionem dicti Roberts pronunciavit dictum
Gnlielmum Stringer, partem Lee^ in probatione libelli alias ex
parte sua in hac causa dati et admissi defecisse et deficere;
ideoque praefetum Thomam Browne et socios, partes Roberts, ab in-
stantia et impetitione dicti Gulielmi Stringer quoad petita per
enm in hac causa dimissendos et absolvendos fore de jure debere
decrevit, sicque dimisit et absolvit ; necnon cautionem sive stipu-
lationem in hac causa ex parte dictorum Thomsd Browne et
sociorum decimo nono Novembris 1695 interpositum cassavit et
annul lavit proque nulla et invalida ad omnem juris efiectum de-
T 2
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276
RECOBDS— HIGH OOUET OF ADMIRALTY.
ime
BXmiNGKB
Bbowwe,
Tub
Tbuelove
AND The
HOPEWELL.
clarayit ; prsBfatosque Gulielmum Stringer et socios in expensis
legitimis condemnavit, et assignavit ad audiendum voluntatem
suam super taxationem earundem in prox. ; dicto Lee dissentiente
et protestante de gravamine et de appellando.
The Delegates' Process upon the appeal in this case is preserved (Delegates'
Processes, vol. 218). It contains (together with all the proceedings and evidence)
copies of the sentences porrected by the parties in the Admiralty Court. The
sentences are similar in form to those in use in the Court of the Delegates. The
writer has been unable to discover any of the actual sentences read by the
Admiralty Court. If such sentences were engrossed and signed (and from the
minutes of the Assignation Books it appears they were read by the Court), they
api«ar not to have been preserved amongst the records of the Admiralty Court.
Possibly they were handed to the parties.
The entry, 27th Jan., 1696 (1697 ?), in the Delegates' Assignation Book of
the sentence made upon appeal is as follows : —
STKINGEB V. BKOWNE et Socios.
Lee. Perisson.
Lee porrexit sententiam definitivam in scriptis conceptam
quam pro parte sua petiit ferri, ac jus, &c. ; Perisson petente jus-
titiam. Domini legerunt sententiam pronunciando pro £130
logalis, &c.,. pro damno, et condemnando in expensis, quas post
latam sententiam taxarunt ad summam viginti librarum legalis,
Ac; £50 sol vend, in vel ante festum Annunciat. Beat. Mariae,
£50, 1 Maii, et ult. £50 . . . ses&ionis . . .
'i'he sentence is as follows : —
Id Dei nomine Amen. Auditis visis et intellectis ac plenario
et mature discussis per nos Johannem Turton unum Justitiariorum
Domini Begis ad placita coram ipso Bege tenenda assignatorum,
Johannem Powell Militem unum Justitiariorum Domini Begis
de Banco, Littleton Powys militem unum Baronum Serenissimi
Domini Begis, Georgium Oxenden Legum Doctorem AlmaB Curiae
Ctint.de Arcubus London OfficialemPrincipem,Henricum Newton,
Mattheum Tindall, et Wilielmum King, Legum Doctores, Judices
(iuter alios) Delegates vigore literarum patentium et commissiona*
lium magno sigiUo AngliaB communitarum in negotio infrascripto
rito et legitime procedentes meritis et circumstantiis cujusdam
causa) appellationis et querelas quae coram nobis in judicio inter
tiiilielmum Stringer nunc vel nuper solum proprietarium navis
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COUBT OF DELEGATES. 277
Tocatie The True Love de Lyim (cujas Bobertus Mason est vel 1696
nnper fait magister) ejosque apparatuum et accessionum partes stmngbb
appellantes et qnerelantes ex una et Thomam Browne nunc yel ^ ^'
nnper magistrum navis sive naviculaB vocatsB The Hope de Lynn et The
. . , . . , . ,, Tbuklovb
80C10S snos pro interesse suis mtervenientes partes appellatas et and The
qnerelatas partibus ex altera vertitur et pendet indecisa rite et <^^^'^^^^^
legitime procedentes, partibus prsedictis per earum respective pro-
cnratores coram nobis in judicio legitime comparentibus, parteque
prsefati Gulielmi Stringer sententiam ferri et justitiam fieri pro
parte sua, parte vero Thomaa Browne et sociorum justitiam etiam
pro parte sua instanter respective postulantibus et petentibus
Bimatoque primitus per Nos toto et integro processu &c. ; Quia per
acta, &c. IdeircQ Nos, &c. [formal parts as in Rarbyn v. Berry y supra,
p. 235]. Pro voce appellationis et querelas ex parte dicti Gulielmi
Stringer ad banc curiam factarum et interpositarum easdemque
appellationem et querelam fuisse et esse veras justas et legitimas
interpositas, necnon bene rite et legitime ex parte dicti Gulielmi
Stringer appellatum et querelatum, maleque et contra juris
ordinem per Judicem a quo extitit in hac parte appellatum pro-
cessum pronunciatum decretum et sententiatum fuisse et esse
pronunciamus decemimus et declaramus, decretum Interloquu-
torium (sic) praatensimi alias per Judicem a quo extitit in hac
parte appellatum latum et pronunciatum revocamus cassamus et
annuUamus proque nullo casso et invalido ad omnem juris effec-
tum pronunciamus decemimus et declaramus, pronunciatumque
Gulielmum Stringer anno et mensibus in hac causa libellatis
verum et legitimum fuisse proprietarium dict» navis The True
Love of Lynn ejusque apparatuum et accessionum, dictamque
navem The Hope dictam navem The True Love in viagio suo a portu
de Eong's Lynn ad portum de Sunderland desuper alto mari infra
fluxum et refluxum maris et infra jurisdictionem Supremae Curise
Admiralitatis Angliae inter Hartley Poole et Sunderland velifican-
tem incurrisse et violenta concussione gubemaculum dictee navis
diripuisse et superiorem partem dicti gubemaculi in mare arri-
puisse et ratione dictsB violentee concusssionis carinam dictae navis
The True Love fuisse et esse contusam, praefatumque Gulielmum
Stringer damnum ad summam centum et triginta librarum legalis
monetae Angliae per dictam diruptionem gubemaculi dictae navis
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278
BECOBDS-HIGH COURT OP ADMIRALTY.
16%
UnowXEL
TUE
TUGKLOVB
A3fD TUE
HOPET^BLL.
Hie Trtie Love sustinuisse et sustinere pronunciamus deceraimus
et deolaramas praefatumque Thomam Browne et socios in snmma
|ir£Ddicta centum et triginta librarum legalis monetsB Angliae
pTiBfato Gulielmo Stringer de jure condemnandos esse debere
deceriiiinus sicque condemnamus, priefatumque Thomam Browne
et Bocio8 eorumque fidejussores pro eis in hac parte astrictos in
expensis legitimis ex parte et per partem praedict. Gulielmi
StriDf^er tam in prima quam in hac instantia factis vel faciendis
eidemqae vel parti suae solvendis condemnandos fore etiam de
jure debere pronunciamus decemimus et declaramus sicque etiam
condemnamus per banc |nostram sententiam definitivam sive
hoc nostrum finale decretum quam sive quod ferimus et pronun-
eianius in his scriptis; taxationem vero sive moderationem ex-
pen.^amm praedictarum nobis nostrisque condelegatis reservando
reservamus.
S, Waller. Jo. Turton.
Thus, Lane. John Powell.
Littleton Powys.
Geo. Oxenden.
Hen. Newton.
Mat. T1NDAI.L.
Will. King.
(Endorsed) Lecta lata et promulgata fuit sententia retroscripta
per Jiidices Delegates in eadem mentionatos vicesimo septimo
die luensis Januarii Anno Domini stylo Angliae millesimo
sexcentesimo nonagesimo sexto in Aula &c.
Ita Testor Thos. Cantrell,
Not. Pvhl Beg^ . . . De^''
1097
GOSFRIGHT v. LUOGOLETTL
Suit relating to 60 tons of currants on board the St. Antonio and freight for
the Kiime ; Ad. Ct. Assignation Book, 26th Ap. 1697. No appeal, or prohibi-
tion,
Frtinciscus Gosfright Petrus Whitcombe et Brownloe Sherrard
contraeexaginta tonnas uvanmi Corinthinearum(Anglice currants)
in nave The St. Antonio de Padua (cujus . . Luogoletti et . . .
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COURT OP DELEGATES. 279
Gieyeglier sunt et eomin alter est magister) onastas ad eos spec- 1697
tant et contra dictum Luogoletti pro interesse &c. in specie ac gosfmoht
0^^&<^ LuoGo'i^i.
Cottle. Smith.
. . . Dominns auditis advocatis et procuribns finaliter interlo-
qnendo ad petitionem Cottle decrevit the sixty tons of currants to
be delivered to Cottiers clients, upon baile in double the value, to
indemnify the master, and to pay the value according to an
appraisement, in case the interest or property of any other person
shall be pronounced for ; and to pay whatsoever sums shall be
ordered by this Court in relation to the goods . • . and ordered
whole freight according to charter-party to be paid to the master
when the goods are delivered ; and ordered that a copy of this
order be sent to the Commissioner of the Customes.
THE ST. JOHN THE BAPTIST alias THE DOVE. i698
Poesession suit. Bail required in double value; Ad. Gt. Ass. Book, 6th May,
16d8.
Thomas Dubois Niclus. Baker Johannes Baker et socii contra
navem modo (ut praetenditur) vocatam The St. John the Baptist
(cujus Matthseus Bodkin est praetensus magister), sed nuper
vocatse The Dove (cujus Andreas Way fuit magister), ejusque, &c.,
ad se spectan. et contra quodcunque naulum pro importatione
bonorum in e&dem nave onustorum et contra dictum Bodkin in
specie, necnon contra Antonium Hedges et socios pro interesse
suis in eadem intervenientes.
Sayer. Exton.
Ad audiendum voluntatem Domini super hincinde petitis.
.... Dominus decrevit possessionem navis partibus Boston
interposita cautione in duplici valore de solvendo verum valorem
dictSB navis juxta appr'nem et naulum pro transportatione, &c.,
justa computatum per Exton date casu quo (pro) interesse par-
tium Sayer per banc Curiam pronunciabitur.
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280 RECORDS— HIGH COURT OF ADMIRALTY.
i^ This case is one of many in which bail for double the value of the ship, or of
the share in the ship, claimed was required. Other cases to the same effect are:
Bt. John ^^^^^^^ ▼• ^^^ Bichard and Waiiam, 3rd January, 1713; Ahtrom v. Maartew,
nix Baptist 12th May, 1727; Dintmddie v. Bravo, 16th January, 1730; The Peg^y, 15th
aUof^TuMi December, 1802; The Peggy, 16th May, 1809.
BENNEN V. HUMBLE.
THE PROSPEROUS AND THE HOPEWELL.
Collision. The rule of division of loss applied by Sir C. Hedges. No appeal
Admiralty Assignation and Act Books, 9th May, 1698 ; 26th May, 1698.
Petrus Bennen proprietarius navis nuper vocatae The Prosperous
contra navem The Hopewell (cnjus Bobertns Humble est magister),
ej usque, &c., et contra dictum Bobertum Humble et socioe pro-
prietarios dictae nayis pro interesse suis interyenientes.
Smith. Sayer.
Ad sententias ex secundft ad petitionem Sayer.
Quo die procuratores hincinde porrexerunt sententias in scriptis
conceptas quas respective petierunt ferri et justitiam fieri pro
parte respective sufi. Unde Dominus auditis prius probationibns
in bac causa factis ac advocatis et procuratoribus hincinde
habit&que maturfi consideratione totius negotii finaliter inte^
loquendo pronunciavit damnum utrique navi in bac parte com-
missum per utramque navem eequalibus partitionibus (Anglice
share and share alike) sustinendum fore de jure debere, videlicet,
cUmidium valoris damni per navem The Hopewell sustenti per
proprietarios navis The Prosperous solvendum fore, et medie-
tatem valoris damni per proprietarios navis The Prosperous
ratione perditionis diet© navis The Prosperous sustenti per pro-
jirietarios navis The Hopewell solvendam fore de jure debere,
gicque adjudicavit et decrevit ; et ad petitionem Smith assignavit
ad audiendum voluntatem suam super liquidatione damni prsedicti
in tertiam sessionem hujus termini; dicto Sayer dissentiente, &c
26th May, 1698. — Ad audiendum voluntatem Domini super
liquidationem damni ad petitionem Smith.
Dominus auditis advocatis et procuratoribus pronunciavit
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COURT OF DELEGATES. 281
damnum per dictum Petrum Bennen nuper proprietarium navis 1698
The Prosperous in hac parte sustentum ad summam ducentarum bbnnbn
qninquaginta librarum legalis, &c, extendisse et extendere, et humblb.
damnum per Bobertum Hamble et socios in hac parte sustentum ^ '^^
^ x% • J Pbospkroub
extendisse ad summam sexaginta librarum ; ideoque Dominus ad ^vd The
petitionem Smith condemnairit dictum Bobertum Hamble et
socios partes iSayer in summa nonaginta quinquo librarum legalis,
&a, et decrevit eandem prsefato Petro Bennen solvendam fore ;
dicto Suyer dissentiente, &c.
HOPEWELL.
HANSEN V. CABGO EX THE VINE GBAPE. 170X
Title of salyage actions; Ad. Ct. Assignation Book, 15th April, 1700; 30th
May, 1701.
Marcus Hansen et socii contra ferrum in scbedula warranto
annexato memoratum nuper in nave The Vine Orape or Bunch of
Orapes, cujus Grarret Gnerlsen (?) fuit magister, onustum et in
loco maritimo yocato the Whiting Sand prope Orford Ness cum
dicta nave naufractum, et postea e mari salvatum, in quorum-
cunque manibus existens, et contra omnes, &c., ao contra S. D. N.
Begem, necnon Gulielmum Hollingshead, Johannem Brady, et
Johannem Syreds, salvatores eorumdem bonorum et contra
Samuelem Pary, armigerum, ac etiam contra Nathanielem
Bandall, pro eorum respectiye interesse interyenientes.
HALLS V. AN ANCHOB.
Salvage of an anchor.
Johannes Halls, Johannes Taylor et socii, proprietarii navis
vocataa The John and lUheeea (cujus Andreas Browne est magis-
ter), ejusque, &c., contra unam anchoram et partem rudentis
nuper ad dictam navem spectantem et in manibus Johannis
Shores existentes, et contra dictum Shores in specie, ac omnes, &c.
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282 RECORDS— HIGH COURT OF ADMIRALTY.
1702 MASON V. JOHNSON.
THE JEBBMIAH AND THE PROVIDENCE.
Collision. Rule of dlylslon of loss applied by Dr. Bramston (sitting for Sir C.
Hedges) as regards damage to the ship— Full damages awarded for damage to
cargo. There was an appeal, but it was abandoned. Ad. Ct. Assignation Book
and Act Book, 11th March, 1702 (1703), 11th May, 1703, Delegates' Assigna-
tion Book, 9th Feb. 1703 (1704).
Jeremiah Mason, Johannes Lewin et socii, proprietarii navis
The Jeremiah de Whitby (cujus Johannes F ... est magister),
ejusque, &c., et bonorum in eadem, contra navem quandam voca-
tam The Providence de Evil (cujus Eadulphus Johnson est
magister), ejusque, &c., et bona, &c., in eadem remanentia et
contra dictum Badulphum Johnson in specie necnon contra
Eadulphum Bloome et socios pro interesse suis intervenientes in
quadam causa dajnni ac (?) ciyili et maritima.
Bogg. Boheme. Bayer.
The Act on the file, Act Book, fol. 407, is as follows : —
Quo die Bog allegavit intentionem suam ex parte Jeremiae
Mason Johannis Lewin et sociorum partium fuisse ac esse
sufScienter fundatam et probatam, quare petiit partes Sayer in
damnis per eum in hac causa libellatis ac etiam in expensis
de jure debitis condemnari ac jus, &c., in preesentia Sayer dis-
sentientis et inficientis allegata per Bog esse vera et allegantis
dictum Bog in probatione damni praedicti omnino defecisse
ideoque petentis partes suas ab instantia et impetitione dictarum
partium Bog dimittendas et absolvendas fore decemi et porri-
gentis sententiam in scriptis conceptam ad eundem effectum
quam petiit legi et ferri, ac jus, &c. ; dicto Bog dissentients.
Undo Dominus auditis probationibus in hac causa factis ac ad-
Yocatis et procuratoribus hincinde, habitaque matura considera-
tione totius negotii, finaliter interloquendo ad petitionem Bog
pronunciavit dictos Jeremiam Mason Johannem Lewin et socios
tempore libellato fuisse veros et legitimes proprietaries diet®
navis The Jeremiah de Whiiby ejusque, &c., et bonorum in eadem,
dictamque navem The Providence de Evil tempore libellato in
dictam navem The Jeremiah de Whitby in cursu suo navali super
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Providencb,
COUET OF DELEGATES. 28^
alto mari ac infra jurisdictionem hujus curias vela facientem in- 1702
currisse ac violenti concussione dictam navem The Jeremiah de Mason
Whitby coUisisse ac ratione ejusdom concussionis dictam navem jqhnson.
The Jeremiah de Wliithy ejusque apparatus et accessiones et bona '^^^
m eadem penitus obruta deperdita et submersa fuisse ex praefati and Tbe
Randulphi Johnson magistri navis The Providetice ejusque nau-
tarum culpa et negligentia eisdemque submersionem praidictam
merito imputari de jure debere, ideoque praefatos Eandulphum
Bloome et socios proprietaries dictaB navis The Providence ad
certam damni in hac parte liquidandi partem luendam et exsol-
vendam condemnandos fore de jure debere etiam pronunciavit.
Cum autem ob incertitudinem ex varietate et contrarietate deposi-
tionum testium hincinde examinatorum proveniente certa pars
damni quota est liquidari et adamussim (1) haudquaquam taxari
possity Dominus Surrogatus praedictus dispositionem juris maritimi
apud omnes receptissimi sequens praefatos Bob. Bloome et socios,
partes Sayer, in medietate damni in hac parte sustenti ac etiam
in expensis de jure debere condemnandos etiam pronunciavit,
et assignavit ad audiendum voluntatem suam super liquidatione
damni sustenti et taxatione expensarum in primam sessionem
prox. term, dicto Sayer dissentiente et protestante, &c.
llth May, 1703 (Act Book, fol. 434).
Quo die Dominus, &c., ad petitionem Bog liquidavit damna in
hac parte sustenta prout sequitur: videlicet, pro quinquaginta
sex mensuris carbonum (Anglice, " chaldron of coals ") in dicta
nave I%6 Jeremiah of Whitby tempore libellato existentibus
summam triginta duarum librarum et quatuor solidorumjuxta
ratam undecim solidorum et sex denariorum pro qualibet men-
sura (Anglice, "chaldron") praedicta, et pro medietate dictae
navis, ejusque, &c., summam trecentarum librarum, et pro lapi-
dibus in eadem tempore libellato existentibus summam decem
solidorum, in toto extendent. ad summam trecentarum triginta
duarum librarum et quatuordecim solidorum legalis, &c., quas
summas dictis Jer. Mason Johanni Lewin et sociis fuisse ac esse
dejure debitas et solvendas fore, &c. &c. [Here follows tax-
ation of costs and monition to Bloome & Co. and their bail to
pay the amount of the damages and costs.]
[(1) Ad amussimy exactly ; amussis, a workman's rule.]
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$g| BECORDS— mGH COURT OF ADMIRALTY.
im BALLAM V. LARWICK
THE SWAN.
Acticm by material-man. Decree for price of goods supplied; Ad. Ct
A BBig nation Book, 8th Oct., 1702. No appeeJ.
Johannes Ballam et Gulielmus Hart contra navem quandam
vocatam The Stvan, cujus Bemt Gertson nuper fait sed Johannes
Orse, alias Old, alias Larwick, nunc est magister, ejusqne &c., et
contTEi dictum Larwick in specie uecnon Nicholaum Justen pro
iiiteresse suo intervenientes.
Sayer* Boheme^
Ad sententiam ex secunda casn quo Boheme non introduxerit
in Registrum hujus curiaB pecuniam petitam ante hunc diem ad
petitionem Sayer.
Domini auditis advocatis ac procuribus hincinde finali inter-
loquendo pronunciavit summam £104 158. fuisse et esse Johanni
Ballam de jure debitam pro funibus et materialibus libellatis ;
8T3mmamque £19 lis. 6c2. fuisse et esse Gulielmo Hart de jure
debitam pro anchora et materialibus libellatis; et condemnavit
partem Boheme in dictis summis ac etiam in expensis. Sayer
poirexit billam expensarum. Dominus taxavit eandem ad
£10 . • • • Sayer fecit fidem de expensis. Monitio contra fide-
jussrires ad solvend. infra 10°^ dies post monitionem, alioquin
attachiand« ; Boheme dissentiente.
l7oa TILLS V. THE MARY.
MUNDAY V. THE MARY.
Tbe Tlopewell and her cargo were damaged by grounding on the anchor of
the Mnry, which was unbuoyed. The owners of the Hopewell and her cargo
obtfiiacd a decree against the Mary for the amount of their loss, and against
TilliST tbe master of the Mary. Tills and the mariners of the Mary, after tbe
«rrest of the Mary, sued her for their wages, and obtained a decree for tbe
amount due to them. The decrees in both suits against the Mary went by
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COUKT OF DELEGATES. 285
default. By a subsequenfc decree it was held that Tills and the mariners were 1703
entitled to be paid their wages out of the proceeds of the Mary (which had
been sold in Tills' suit) in priority to Munday and his co-owners of the Hope- ^^
wdl and her cargo. Ad. Ct. Act Book, 5th June, 1703. The BlAirr.
Monday
Johannes Tilb, magister, et socii nautsB navis vocatsB The thbMabt.
Mary contra eandem, ejusque &C.9 et contra omnes &c.
Barrett.
Johannes Munday et socii proprietarii navis The Hopewell
(cnjns Michael Yoakeley est magister), ejnsque &c., et bonorom
m eadem contra navem The Mary (cujos Johannes Tills est
magister), ejusque &c., et contra dictum Tills in specie ac
onmes &c.
WUmer.
3rd Nov., 1702, first default in Munday v. The Mary.
7th Dec., 1702, fourth default in same.
iBt Dec., 1702, first default m TUh v. The Mary.
11th March, 1703, perishahle monition and sale decreed in TiSh v. The
Mary.
After stating certain matters relating to the sale of the Mary the entry
(5th June, 1703) proceeds : —
Tunc Barrett exhibuit procuratorium suum pro dicto Johanne
Tills et sociis, magistro et nautis dictse navis The Mary, et fecit,
&e. &c. ; et allegavit dictam navem, The Mary, ejusque, &c.,
fuisse et esse per primum decretum hujus curise ad instantiam
partium suarum pro salariis suis pro eorum servitiis in dicta
nave praestitis debitis, extendentibus ad summam quadringen-
tarum nonaginta novem librarum novem solidorum et trium
denariorum condemnatam, dictamque navem, ejusque, &c., ad
petitionem et procurationem dictarum partium suarum diven-
ditam et pecunias exinde provenientes in Begistrum hujus curisd
introductas, ibidemque modo remanere. Quare petiit dictam
summam quadringentarum nonaginta novem librarum novem
solidorum et trium denariorum expensis contumaciis in h&c
parte taxatis sibi in usum dictarum partium suarum dictis
pecuniis solvendam fore decemi ac jus, &c., in prsBsentia WUmer
ex superabundant, exhibentis procuratorium suum pro dicto
Johanne Munday et sociis proprietariis dictae navis The Hopewell
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286
RECORDS— HIGH COURT OF ADMIRALTY.
1703 et bonorum nuper in eadem onustorum, et facientis, &c. &c.,
Tills dissentientis et allegantis dictam navem The Hopewdl herba
ThbMary i^i^^otiana onustam anno 1702 a reditu suo a partibus trans-
MuNDAY marinis infra fluxum et reflnxum maris et jurisdictionem hnjus
ThbMaby. curiae in rivo Thamesis in statione quadam roaritima et con?©-
nienti (omni diligentia praefati Michaelis Yoakley et nautamm
ejusdem navis prius adhibita) anchoram jecisse et in anchoris
stetisse; ita tamen accidisse quod dicta navis in refluxu maris
super anchoram quandam absque indicibus anchorariis ad dictam
navem The Mary spectantem impingebat ; et praeterea allegantis
dictam anchoram tantum foramen fecisse ut magna inde aquamm
quantitas in dicta nave cura et diligenti& praafati Michaelis
Yoakley et nautarum ejusdem navis non obstante influebat, et
ex eo influxu et incursione dictam navem The Hopewell ac herbam
nicotianam in eadem onustam ratione praemissorum passa fuisse
ac esse ad summam mille et ducentarum librarum legalis, &c ;
et ulterius allegantis tempore praedicto dictam anchoram ad
dictam navem The Mary spectasse et pertinuisse, idemque
damnum accidisse ex incuria et negligentia praefati Johannis
Tills magistri, et nautanmi ejusdem navis The Mary ; et ulterius
allegantis dictam navem The Mary, ejusque, &c., ad resarcienda
damna praedicta fuisse ac esse, per articulum ex primo decreto
ad instantiam partium suarum pro summa mille et ducentarmn
librarum partibus suis condemnatam, idemque decretum ut-
cunque (?) per Barrett obtentum sine praBJudicio partium suarum
scilicet dicti Wilmer fuisse admissum, nihilque partibus Barrett
sou saltem dicto Johanni Tills ratione praedictorum decemendum
fore de jure debere, summamque integram e venditione diet®
navis provenientem praefato Johanni Munday allocari et solvi
una cum expensis contumaciae ac jus, &c., de jure debere; et
petentis per banc curiam ita decemi, ac jus, &c., dicto Barrett
dissentiente, inficiente, et petente ut prius, ac jus, &c. Fnde
Dominus assignavit ad audiendum voluntatem super hincinde
petitis in diem Jovis octavum Juliis prox. in aurora, &c.
8th July, 1703. After declaring that the wages due to BarretCs parties
•amounted to £508 13s. Zd., the note of the decree proceeds : —
Undo Dominus (1) auditis advocatis et procuratoribus hinc-
[(l) Dr. Bramston sitting for Sir C. Hedges.]
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COURT OF DELEGATES. 287
inde, ad petitionem Barrett decrevit dictam summam quin- 1703
gentarom octo librarum tredecim solidorum et trium denariorum tills
dicto Johanni Tills magistro et sociis nautis dictse navis eorumve rjr^^ mabt.
attornatis legitimis in eorum usum e pecuniis praedictis solvendam Mundat
fore, interposita prius cautione, &c. ; et decrevit summam duo- The Mabt.
decim librarum pro expensis contumacias in ea causa ttixat. dicto
Barrett solvendam fore; et insuper decrevit summam undecim
librarum et decem solidorum pro expensis contumaciae in causa
dicti Johannis Munday et sociorum dicto Wilmer solvendam, et
residuum pecuniarum praedictarum, nempe summam centum
viginti unius librarum novem solidorum et novem denariorum
dicto Johannis Munday, in usum suum ejusque sociorum in parte
summae eis per primum Decretum praedictum adjudicatae sol-
vendum fore, interposita prius cautione prout in similibus, &c.
ALWIN V. EAGLESFIELD. 1704
The following actions for wages and damages are taken from many which
occur during the seventeenth and eighteenth centuries; Ad. Ct. Assignation
Book, 20th January, 1704.
Bobertus Alwin, nuper nauta navis cujusdam vocatae The
Mizabethy contra quondam Eadulphum Eaglesfield, nuper magis-
trnm ejusdem.
TAYLOR V. HERNE.
Johannes Taylor contra quondam Johannem Heme, nuper
capitaniun navis Regiaa vocataB The Centurion in causa damni ao
civili, &c.
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288 BECORDS— HIGH COURT OF ADMIRALTY.
im YOUNG V. LAWEENCE.
THE ELIZABETH AND CATHERINE.
Wages. Decree for wages in subsequent voyage in priority to wages in pre-
vious voyage ; Ad. Ct. Assignation Book, 5th July, 1705. No appeal
Willielmns Young, Johannes Hand et socii, nnper nante navis
The Elizabeth and Catherine, cujus Richardus Lawrence est
niagister, contra eandem, ejusque, &c., et dictum Lawrence in
specie, necnon contra Josephum Short, Edvardum Jones et
Bocios, etiam nuper nautas diet® navis, pro interesse suis inter-
venientes.
Eodan, Bridges.
Ad audiendum yoluntatem Domini super hincinde petitis.
Dominus, auditis probationibus ac advocatis et procuribus
hiacinde, finaliter interloquendo pronunciayit : that the mariners
who served in the last voyage are preferrable by law to the
mariners of the former voyage, and therefore ordered the money,
fees, &c., in both causes and all the charges to be first paid, and
then the money in Court to be paid to Extends clients according
to their primum decretum interposita cautione ; and if any be
over then the rest to be paid to Bridgets clients ; Bridges pro-
testatus est de gravamine.
1706 MARSINGILL v. TAYLOR.
THE ADVENTURE AND THE SUPPLY.
Collision. Rule of division of loss applied by Dr. Bramston, sitting for Sir
C. Hedges; Ad. Ct. Assignation and Act Books, 14tli and 21st June, 1706.
There was no appeal. The Act on the file is similar in terms to that in Mas/on
V, Joh'Mon^ supra, p. 282, except that the decree is for half the loss on cargo
and ship, and not, as in the former case, for full damages to cargo and half
damages to ship.
Jacobus Marsingill, Johannes North, Johannes Shephard et
EQoii nuper proprietarii navis cujusdam vocatse The Adventure
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COTTRT OF DELEGATES. 289
(caJQs Johannes Bramble nuper fait magister), ejnsqne, &C.9 et 1706
bonorum, &c.y in eadem onustoruniy contra navem quandam 'm][^^
Yocat® The Sttpply (cnjus Jeryasius Martyn est magister), ejusque,
&Cy et Johannem Taylor pro interesse suo interyenientem necnon The
contra dictum Jerrasiom Martyn magistrum. and Thb
[GILL
Taylor.
Supply.
Sayer. Bouse.
The Act on the file (omitting formal parts) is as follows (Act Book, foL
633):-
.... Unde DominoSy auditis, &c., pronunciavit dictos Jac
Harsingill, Job. North, Joh. Shepphard, et socios, tempore
libellato fuisse veros et legitimes proprietaries dictae navis The
Adventure^ ejosque, &c., et bonorum in eadem dictamqne navem
The Supply, tempore libellato in dictam navem The Adventure^
cnrsu sao navali super alto mari et infra jurisdictionem hujus
Curue vela fSacientem incurrisse ac violenti concussione dictam
navem The Adventure collisisse ac ratione ejusdem concussionis
dictam navem The Adventure ejusque apparatus et accessiones et
bona in eadem penitus obruta deperdita et submersa fuisse ac
esse ex prsefati Jervasii Martyn magistri navis The Supply
ejusque nautarum culpa et negligentia, eisdemque submersionem
prsedictam merito imputari de jure debere ; ideoque partes Bouse
ad certam damni in h&c parte liquidandi partem luendum et
exsolvendum condemnandos de jure debere etiam pronunciavit.
Cum autem ob incertitudinem ex varietate et contrarietate de-
positionum testium hincinde examinatorum provenientem certa
pais damni quota est quam altera pars alteri dedit liquidari et
adamussim taxari haudquaquam possit Dominus Surrogatus
prsedictus dispositionem juris maritimi apud omnes receptissimi
sequens praefatos Joh. Taylor et Jerv. Marty partes Bouse in
medietate damni in h&c parte sustenti ac etiam in expensis de
jure debitis condemnavit et assignavit ad audiendum voluntatem
suam super liquidatione damni sustenti et taxatione expensarum
in diem extraord. scilicet vicesimam primam diem mensis Junii
instantis in aurora, &c.; Bouse dissentiente et protestante de
gravamine et de appellando.
21st June, 1706. — Dominus auditis, &c., pronunciavit damna
per partes iSSoty^r sustenta ad summam trecentum librarum legalis,
u
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230 RECORDS-HIGH COURT OF ADMIRALTY.
1706 &c., extendisse et extendere, ideoque decrevit medietatem diet®
MARsiNGiLir summae, scilicet summam centum quinquaginta libramm per
Taylor. P^^^^ Bouse partibus Sayer solvendam fore de jure debere sicque
Thj; condenmavit. Sayer porrexit billam expensarum, &c.
Adv£ntire
A«D TUE
1700
NODEN V. ASHTON.
THE MABT AND THE REBECCA.
Collision. Rule of division of loss applied by Dr. Bramston sitting as Surrogate
for Sir C. Hedges. The decision of the Court of Admiralty affirmed cm appeal ;
Ad Ct. Assignation Book, 20th June, 1706; Act Book, fol. 536; Delegates*
Assignation Book, 12th Dec. 1706 ; Delegates' Process Book, voL 304 ; Delegates'
Bcntence.
Carolus Noden et socii proprietarii navis cujusdam vocat©
The Mary de London contra quendam Johannem Ashton nuper
magistrum navis cujusdam rocatse ITie Rebecca de Falmouth.
Glassier. Boheme.
14th June, 1706. The sentence of Dr. Bramston was as follows (see
Delegates' Process Books, vol. 304) : —
In Dei Nomine Amen. Auditis visis et intellectis et plenario et
mature discussis per Nos Georgium Bramston, Legum Doctorem,
Burrogatum Praehonorandi Viri Domini Caroli Hedges Militis,
Legum etiam Doctoris, Supremse curiae AdmiraUitatis Angliie
Judicis PrsBsidis sive Locumtenentis legitime constituti ; Mentis
et circumstantiis cujusdam causae sive negotii civilis et n\aritimi
quae sive quod coram Nobis in Judicio pro parte Caroli Noden et
30ciorum ciyitatis Londinensis mercatorum, Proprietariorum navis
cujusdam vocatae The Mary de London (cujus Henricus Vaughan
nuper fuit magister) ejusque apparatuum et accessionum et
bonorum in eadem partes agentes et querelantes ex una {sic) et
Johannem Ashton, Magistrum navis cujusdam vocatae ThA
Bd)ecca, partem ream et querelatam sive contra quam (sic) dictum
negotium promovetur partibus ex altera vertitur et pendet indecisa
rite et legitime procedentes, partibusque praedictis per earom
respective Procuratores coram nobis in Judicio legitime compa-
rentibus parteque praefati Caroli Noden et sociorum praedictomin
sententiam ferri ac justitiam fieri pro parte sua, parte vero
memorati Johannis Ashton prout in actis etiam' pro parte sua
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COUBT OF DELEGATES. 291
respective postulantibus et petentibus ; Bimatoque primitus per 1706
N08 toto et integro processu alias coram Nobis in hujusmodi caus& kodeh
sive negotio habito et facto ac diligenter reensito ; Servatisque per ^eW
Nos de jure in hac parte servandis ad Nostrae SententiaB definitiveB The Mart
siye Nostri finalis decreti in hujusmodi caus& siye negotio ferend. Bebeooa.
prolationem sic duximus procedendum fore et procedimus in hunc
qui sequitur modum ; Quia per acta inactitata deducta allegata
exiubita proposita probata pariter et oonfessata in hujusmodi causa
sive negotio comperimus luculenter ac invenimus partem dicti
Garoli Noden et sociorum prsBdictorum intentionem suam in
quodam Libello aliisque propositis et exhibitis ex paxte sua in
hujusmodi causa sive negotio datis exhibitis et admissis et penes
Begistrum hujus Curisa remanentibus deductam Quae quidem
Libellum aliaque (?) proposita et exhibita prsedicta pro hie lectis
et insertis habemus et haberi volumus sufficienter et ad plenum
(quoad infra pronuncianda) fundasse et probasse nihilque saltern
effectualiter ex parte aut pro parte dicti Johannis Ashton in
hujusmodi causa sive negotio exceptimi deductum allegatum ex-
hibitum propositum aut probatum esse quod intentionem dictorum
Caroli Noden et sociorum (quoad infra pronuncianda) elideret sen
quomodolibet enervaret ; Idcirco Nos Georgius Bramston Legum
Doctor Surrogatus antedictus Christi nomine primitus invocato ac
ipsum solum Deum oculis nostris prssponentes et habentes^ Deque
et cum consilio Jurisperitorum cum quibus in hac parte communi-
cavimus matureque deliberavimus dictos Carolum Noden et socios
tempore in hujusmodi causa sive negotio libellato Dominos et
proprietarios dictae navis The Mary de London et bonorum in eadem
f uisse, dictamque navem The Mary de London annis et mensibus in
hujusmodi causa sive negotio libellatis cum bonis in eadem infra
locum maritimimi vocatum The Small Dovmes infra fluxum et
refluxum maris et jurbdictionem hujus curiae extitisse et fuisse et
ibidem tempore praedicto dictam navem The Bebecca in dictam
navem The Mary de London impegisse et violenta concussione
coUisam fuisse ac ratione dictae impactionis sen violentae concus-
sionis dictam navem The Mary de London et bona in eadem in mare
subito subsedisse et submersa fuisse^ et dictos Carolum Noden et
socios proprietarios dictae navis The Mary de London et bonorum
in eadem damnum ad summam centum septuaginta sex librarum
u 2
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292 RECORDS-HIGH COURT OF ADMIRALTY.
1706 legalis monetss Anglise snstinuisse et sustinere pronunciamus
NoDEN decemimiLS et declaramus ; Quia vero dictamm nayium coUi-
AfUTos- Bionem a dicti Johannis Ashton et nautarum suorum culpa
"^a^bTh- ^* negligentia quadantenus pervenisse eisdemque merito
BfiuBtjuA. imputari posse et debere comperimus, Nos surrogatus ante-
dictus eundem Johannem Ashton ad certam damni prssdicti
partem luendam et exsolvendam condemnandum fore de jure
debere etiam pronunciamus et decemimus; Cum autem ob
incertitudinem ex varietate et contrarietate depositionum
testium hincinde examinatorum provenientem certa pars damni
quota sit quam altera pars alter! dedit liquidari et adamussim
taxari haudquaquam possit^ Nos dispositionem juris maritimi
apud omnes gentes in hac parte receptissimi sequentes, dictum
Johannem Ashton magistrum dictae navis ITie Bebecca in una
medietate tantum damni prsedicti condemnandum fore de jure
debere pronunciamus decemimus et declaramus sicque condemna-
musy dictamque medietatem dictae nayis The Mary de London et
bonorum in eadem ad summam octoginta octo librarum legalis
monetae Angliae extendisse et extendere etiam pronunciamus;
Ideoque dictum Johannem Ashton pro medietate damni prsedicti
in summa octoginta octo librarum legalis monetae Anglia prae-
dictae necnon in expensis legitimis ex parte et per partem dicti
Caroli Noden et sociorum praedictorimi in hac causa factis et
faciendis eisdemque Carolo Noden et sociis vel parti suae
fiolvendis condemandum fore de jure debere pronunciamus
decemimus et declaramus, sicque condemnamus ; taxationem vero
expensarum nobis vel alii judici in hac parte competent! circum-
que (?) reservando reservamus per banc nostram Sententiam
definitivam siye hoc nostrum finale decretum, quam siye quod
ferimus et promulgamus in his scriptis.
Geo. Bbahston,
R. Wood. Surr.
(Endorsed). Lecta et lata fuit haec sententia per Dominum
Surrogatum praedictum die Veneris yicesimo prime die mensis
Junii anno domini 1706, in Aula communi Hospitii Dominonmi
Adyocatorum Londini et praesentibus ut in actis, &c., testibus, &c.
Ita tester,
Rich. Crawley,
Not^»"« Publicus Reg^»"'
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COURT OF DELEGATES.
293
There was an api)eal by Ashton, and the sentence of the Admiralty was
affirmed by the Delegates Ward, Smith, B.B., Dormer, J., Drs. Oldys, Tindall,
Pagit, and Herriott, on the 12tli December, 1706. The Delegates' sentence
(omitting formal parts, which are the same as in the preceding cases) is as
follows : —
Nos Judices Delegati, &c. &c., comperimus luculenter
ac inyenimus dictum Johannem ALshton intentionem suam in
qnadam appellatione et allegatione praetensa aliisque propositis
at exhibitis ex parte sua in hnjusmodi causa interpositis datis
exhibitis et admissis et penes Eegistrum hujus curiae reman-
entibus deductam (quae quidem appellationem et allegationem
praetensas (He) aliaque proposita et exhibita praedicta pro hie
lectis et insertis habemus et habere volumus) minus sufficienter
(quoad infta pronuncianda) fundasse aut probasse sed in pro-
batione ejusdam penitus defecisse et deficere Nihilque effectualiter
ex parte dicti Johannis ALshton yel ex aliqua alia parte in hac
causa exceptum deductum allegatum exhibitum propositum aut
probatum fuisse quod intentionem dictorum Garoli Noden et
sociorum (quoad infra pronuncianda) elideret sen quomodolibet
enervaret Idcirco Nob Judices antedicti Christi nomine primitus
invocato ac ipsum solum Deum oculis nostris praeponentes et
habentis Deque et cum consilio jurisperitorum cum quibus in hac
parte communicavimus matureque deliberavimus male nulliter
et inique et contra juris ordinem ex parte Johannis Ashton
appellatum et querelatum fuisse ac esse appellationemque et
querelam ex ejus parte in hujusmodi causa interpositas ex causis
minus veris justis ac legitimis interpositas fuisse ac esse easdemque
Appellationem et querelam pro nullis et invalidis ad omnem juris
effectum pronunciamus decemimus et declaramus, necnon bene
rite et legitime per judicem (a quo extitit in hac parte appellatum)
pro parte et in favorem dictorum Garoli Noden et sociorum et
contra dictum Johannem Ashton latam omniaque exinde sequentia
ratificamus approbamus et confirmamus ; Hanc igitur causam una
cum incidentibus emergentibus dependentibusque annexis et
connexis quibuscumque judici a quo extitit in hac parte ap-
pellatum et ejus • • • remittendum fore, dictumque judicem
ejusve surrogatum aut alium judicem in hac parte competentem
quemcunque ad procedendum in dicta causa juxta formam retro-
actorum et juris exigentium . . • • fore, non obstante aliquo in
1706
Noden
V,
Ashton.
The Mart
AND Tub
Bebboca.
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294 RECOEDS— HIGH COURT OF ADMIRALTY.
1706 contrarium per banc Cariam decreto aut ab ea emanato pronun-
HwEy ciamus, decemimus, et declaramus, sicque remittimos ; et licen-
AsHTo^ tiamuB prsefatum Johannem Ashton in expensis legitime ex parte
Th E Mauy et per partem dictorum Caroli Noden et sociorum factis et faciendis
AND Ike ,
iiE&jiOCA. eisdemque Carolo Noden et sociis vel eorum parti solvendis con-
demnandum fore de jure debere etiam pronunciamus decemimiifl
et declaramus sicque condemnamus ; Suas quidem expensafi ad
summam quindecim librarum legalis monetae Anglise taxamus et
moderamur ; prsBfatumque Johannem Ashton et fidejussores pro
eo in hac parte astrictos ad solyendum dictam summam quindecim
librarum legalis monetae Angliae dictis Carolo Noden et sociis yel
eorum parti infra quadraginta dies post monitionem eis in h&c
parte factam monendos fore decemimus alioquin per scapulas
capiendos et carceribus committendos ibidemque detinendos
donee et quousque dictam summam quindecim librarum legalis
monetae Angliae modo quo supra taxatam solverint, Sicque pro-
nunciamus decemimus declaramus condemnamus et remittimos
per banc Nostram Sententiam Definitiyam siye hoc Nostrom
Finale Decretum quam siye quod ferimus et promulgamus in his
scriptis.
Nath Edw, Ward.
R. Wood. J, Smith.
Robert Dormer.
Wm. Oldys.
Mat. Tindall.
Ri. Pagitt.
C. Herriott.
KICHENER V. COCKLIN.
THE BLESSING AND THE! WILLIAM AND JOHN.
Collision. The rule of division of loss applied ; Ad. Gt. Assignation Book,
23rd October, 1706; Ad. Ct. Act Book, fol. 4.
Robert Eicbener et socii nuper proprietarii navis cujusdam
vocatsB The Blessing (cujus Ricbardus Rayner nuper fuit magister),
ejusque, &c., contra navem quandam vocatam The William and
John de Sandtvich (cujus Rohertus Smitb est magister), ejosque,
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COURT OF DELEGATES. 295
&c.y et contra Wilielmum Cocklin et socios pro interesse suis 1706
interyenieutes ac etiam contra dictum Smith, magistrum. "kioheker
Garret. Sayer, Junr. Cocklih.
The
Decree of Dr. Bramston condemning Oocklin and Company and their bail in Blessinq
£50, half the loss suffered by the Blessing^ and in costs ; in terms similar to the xutLLiM^AKD
decree in Beckham v. Chapman, MarsingiU v. Taylor, supra, pp. 270, 288. John.
GULL V. CARSWELL. 1709
THE NORTH LYON AND THE PHOENIX.
Collision. Action dismissed by the Admiralty Court. Upon appeal the rule
of division of loss applied by the Delegates ; Ad. Ct. Assignation Book, 26th
May, 1709; Act Book, fol. 359; Delegates' Process, vol. 335.
Grerardus Gull, Lucas Cramer, et socii, nuper proprietarii navis
cujusdam vocatse The North Lyon (cujus Joachim Beckman nuper
fuit magister), ejusque, &c., et bonorum in eadem onustorum contra
nayem quandam vocatam The Phoenix (cujus Johannes Carswell est
magister), necnon quodcunque naulum pro exportatione et impor-
tatione bonorum in eadem et quascunque pecuniarum summas pro
demouragio dictsB navis debitas in manibus UnitsB Societatis
Mercatorum ad Indos Orientales commercium exercentis, et contra
Jo. Carswell et Societatem mercatorum praedictam in specie et
Fredericum Heme, Armigerum Robertum Western, Armigerum,
dictum Joh. Carswell et socios pro interesse suis intervenientes.
8ayer. Boheme, Olasier.
Dominus auditis, &c., ad petitionem Boheme legit sententiam
per eum porrectam, deleta prius clausula quoad expensas.
The warrant, which is set out in the Delegates' Process, is for the arrest of
both the ship Phxnix and her master, Carswell. Prom the following decree
(for which see the Delegates' Process) it appears that the plaintiffs were put to
their election, whether to sue the ship or her master.
7th October, 1708. — Quo die Sayer exhibuit Procuratorium suum
pro Gerarde GulL Luca Cramer et sociis et fecit, &c., et retulit
wanantum originale in hac parte extractum una cum • • . • super
executione ejusdam indorsato. Tunc comparuit Boheme et extulit
procuratorium suum pro Frederico Heame Armigero Heneagio
Featherstone Armigero et sociis Proprietariis navis cujusdam
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PHiENlX.
296 EECORDS-HIGH COURT OP ADMIRALTY.
1709 vocatfiB The Phoenix^ necnon pro Johanne Carswell magistro dictsa
Gtll navis, et allegavit dictam navem, ejusque, &c., necnon nanlom et
Caiiswell. P^c^iiias pro demouragio debitas et dictum magistrum arrestat
The fuisse vigorc warranti preedicti et petiit Sayer assignandmn (?)
AMD THE fore ad declarandum an velit procedere contra navem et naulum
yel contra magistrum ; et dictus Sayer tunc declaravit se yelle
procedere contra navem naulum et demouragium et non contra
magistrum. Deinde Dominus {Sir C. Hedges) ad petitionem
Boheme decrevit praefatum Johannem Carswell ab arresto in liac
parte facto relaxandum et assignavit partibus Sayer ad faciendma
fidem de causa actionis ; Sayer dissentiente ; ad cujus petitionem
Dominus continuavit certify in prox.
The case was appealed, the Judges Delegates being Trevor, Powell,
Praed (?), J J., and Doctors Pagitt and Clements. The following are the notes
of the interlocutory decree in the Delegates' Assignation Book.
Gull et socii contra Western et socios.
Sayer. Boheme.
18th December, 1710. — Domini auditis advocatiset consiliariis
hinc et utroque, finaliter interloquendo pronunciaverunt pro voce
appellationis proque jurisdictione S. D. N. R, The judges are of
opinion that the damage sufifered by the ship, North Lyon, men-
tioned in the proceedings in this cause shall be equally borne by
the parties in this cause, as the same shall be liquidated by this
Court.
Boheme^e parties condemned in costs.
19th December, 1712. — Ad audiendum sententiam quoad liqui-
dationem damni.
The judges, upon hearing the council on both sides, do declare
that the half of the damages sustained by the North Lyon in the
ship and goods, amounting to the sum of three thousand one
hundred and fifty-four pounds eighteen shillings and five pence
halfpenny, ought to be paid by Western and other parties appel-
late in this cause ; and condemn them accordingly in the said
sum and in the further simi of two hundred pounds, for costs of
suit.
A monition against Western & Company was decreed for
payment of damages and costs.
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Phoenix.
COURT OF DELEGATES. 297
15th January, 1712 (1713). — Sayer petiit monitionem emanare 1709
sub sigillo alias (?) 19th Dec. ult. decret. pro sorte principali et gull
^^P^'^ Oaiu^^l.
Thb
Sayer. Boheme. North Ltom
^ AND Thb
Mr. Boheme prayed a monition may go forth against the respec-
tive parties as to their respective parts, and offers for Western,
Carswell, Featherstone, Foot, Wright, and others in actis Curiae
nominated, eleven-sixteenths for their proportion of the sort
principal and costs, which he is ready to tender and leave in the
Begistry of this Court.
Domini auditis advocatis et procuratoribus hincinde decre-
verunt monitionem contra Western, Carswell et socios ad solvend.
summas prsetaxatas (?).... 19 Dec. ult pro sorte principali
et expensis in^ sexaginta dies post .... sub poena attachi. . • •
alias decretam emanare sub sigillo ....
Domini ulterius condemnaverunt dictos Western, Carswell et
socios in summa decem librarum pro expensis auditionis (?)
Boheme . • . . solvend. infra tempus prsedictum (?).«.. vigore
monitionis supra decretse.
Domini monuerunt Bobertum Western Johannem Carswell
praesentes in judicio ad solvend. summas praetaxat.
KIRWAN V. UNDERWOOD. m\
THE TWO BBOTHEBS AND THE FRIENDS* ADVENTURE.
Collision (?). PerBonal action by owners of the Tux> Brothers and her cargo
against the master of the Friends^ Adventure ; Ad. Gt. Assignation Book, 9th
July, 1711. No appeal.
Dominicus Eirwan et socii, S. D. N. Beginse subditi^ et pro-
prietarii navis cujusdam vocatsa The Two Brothers de Oallway
(cnjus Johannes Siggeus est magister)^ ejusque, &c., et bonorum
nunc vel nuper in eadem onusta, contra quondam Jonathanem
Underwood, nunc vel nuper magistrum navis cujusdam vocatae
The Friends' Adventure.
2l8t November, 1711. — Sentence for plaintiff.
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9^% RECORDS— HIGH COURT OF ADMIRALTY.
nog ELETHAM v. GODFREY.
THE ELIZABETH AND THE FRIENDS* GOODWILL.
O^Uision. Defendants condemned in damages and costs; Ad. Ct. Assignation
Bookj 3rd March, 1709. No appeal.
yfmvM Fletham, nuper magister et proprietarius navis cujus-
dam vocatae The Elizabeth de StocJcfon, necnon Georgius Allen
Franciscus Barker et socii, nuper proprietarii bononim nuper in
dicta nave onustorum, contra navem quandam vocatam The
Friendi Goodwill (cujus Gervasius Martin est magister), ejusque,
vtL\, necnon contra Petrum Godfrey et socios pro interesse suis
intervenientes, ac etiam contra Geryasium Martin magistrum.
Sayer. Exton.
Auditis probationibus ac advocatis et procuratoribus hincinde
Dominus finaliter interloquendo ad petitionem Sayer Junior
pronunciavit damnum in hac parte sustentum (?) per partes
Exton Bolyendum fore, et condemnavit partes EoeUm in damno
pra^dicto (?) ac etiam in expensis. Exton protestatus est de
gravamine, &c. &c.
itia COWTON V. COCKE.
" THE WILLING MIND AND THE HENBY.
Collision. Personal action against master. Sentence dismissing defendant
without costs; Ad. Ct. Assignation Book, 11th December, 1712. There was
AH appeal which appears to have been abandoned; see Delegates' Processes,
ToL SM; Delegates' Act Book, fol. 24.
Cbristopberus Cowton et socii proprietarii navis cujnsdam to-
cjitse The Willing Mind, necnon Richardus Woolfe, senior (?), et
sociij proprietarii bonorum in dicta nave onustorum contra quen-
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COURT OF DELEGATES.
299
dam Johannem Cocke quondam magistmm nayis cnjusdam vocatae ^^^2
The Henry and WUliam de Tarmouthy in causa damni. Cowt^~"
Boheme. Sayer. Cockb.
The WiLLora
***** Mind aot)
The Henby.
Dominos auditis probationibus advocatis et procuratoribns, &c^
ad petitionem 8ayer legit sententiam per eum (?) porrectam
deleta prius clausula quoad expensas * * *
PIGG V. GOLDSBUBG.
THE FRBDEBICK AND THE FELTON.
Collision. A sentence similar to that in the last case was made in the
following case on the same day. There was no appeal.
Johannes Pigg, senior, Nathaniel Carter, Eage et Socii, nuper
proprietarii navis cujusdam nuper vocatae The Frederick^ cujus
Johannes Carleton nuper fuit magister, ejusque, &C., et bonorum
nuper in e&dem onustorum contra navem quandam yocatam
The Fdton cujus Samuel Goldsburg, junior, est magister, ejusque,
&c., necnon contra dictum S. Goldsburg et socios pro interesse
suis interyenientes.
Wages. Decree for proportionate part of wages earned up to the time of the
loss of the ship : Ad. Gt. Assignation Book, 1st July, 1712.
Johannes Cutler, Matthias Wallett et socii, nautsB navis cujus-
dam vocatae The David and Joseph de London^ cujus Wilielmus
Arnold est magister, contra eandem, ejusque, &c., et Broughton
Wright et socios pro interesse suis intervenientes.
Bouee. Boheme.
Monitus et W°*^' Arnold ad comparend. hoc die et ad
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1711
CUTLER V. WRIGHT. yj^^
THE DAVID AND JOSEPH.
Google
300 BECORDS— HIGH COURT OF ADMIRALTY.
1712 audiend. banc caosam siimarie in hone diem ad petitionem
CuTLEft Mouse.
Tmk David Botise played the wages mentioned in the summary petition to
A3t© Joeera. ^^ pronounced for, Boheme dissenting and aHedging that there
It re no wages due by law, and therefore prayed his cHents to be
dismissed.
£ 8. d.
Bominns auditis advocatis, et cset., pronunciayit
that the value of the ship and outset (?) at New
England amounts to 1700
That the freight, if the ship had arrived at London,
would have amounted unto 2997
And that expenses laid out upon the said ship at
Falmouth before she was lost amounted to • . 96
£4793_0_0
That the value of the ship and materials saved
amounted to ' 479 9 4
That the freight of the goods saved amounted to 376 4
That the whole wages of aU the mariners from New
England to the time of the loss of the said ship
amounted to 1279 3 7
That the wages of the mariners mentioned in the summary
])etition are to be settled according to the . . . . , and that the
M ages are to be paid according to an average of profit and loss to
be settled hereafter.
ms LUTWIDGE V. VATABLE.
Seizure. In this case Hawkshaw, Judge of the High Court of Admiralty in
Ireland, condemned Lutwidge and others, owners of the Whitehaveti, privateer,
in the sum of £780 as damages for wrongful seizure of the Jane of Dublin on
tlie banks of Newfoundland. There was an appeal to Sir C. Hedges, Judge of
the High Court of Admiralty in England, who allowed the appeal and varied
the sentence of the Court below, reducing the damages to £750. The case was
again appealed, and the Delegates' Process, containing a full statement of the
proceedings, sentence, and decree in the Courts below, together with a copy of
the patent of the Judge in Ireland, is extant : see Delegates' Processes, vol. 345.
The appeal to the Delegates appears not to have been prosecuted. The follow-
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COURT OF DELEGATES. 301
ing title of the cause and note of the decree of Sir C. Hedges is taken from the 1713
Ad. Ct. Assignation Book, 1st June, 1713 : —
LuTwmoB
Negotium appellationis et querelsB nullitatis promotum per Vatablb.
Gualterum Lntwidge Capitaneum sive magistrum navis cujusdam
YocatsB The Whitehaven, OdHey, contra Petmm Vatable Johannem
Porter et Petrum Garesche de civitate Dublini mercatores et
proprietarios prsBtensos nayis cujusdam vocatse The Jane de
Dublin.
SayeVy jwii(yi\ Boston.
Procures hincinde petieruut ut prius et respective porrexerunt
sententiam et petierunt [justitiam (?)]. Dominus, auditis &c.,
finaliter interloquendo pronunciavit pro voce appellationis et
revocavit sententiam judicis a quo, &c., et pronunciavit partes
Exton sustinuisse damnum ratione contentorum in libello in
gumma £750, et condemnavit partem Sayer, junioriB, in dicta
summa ac etiam in expensis ; Procuratoribus hincinde acceptan-
tibus quatenus, &c., et quatenus contra dissentientibus, &c. ; dicto
Sayer protestante, &c.
The following is the title of a suit in respect of the same seizure against the
Provotty consort of the Whitehaveriy commenced in the High Coiurt of Admiralty.
It was hefore the Court upon the day on which the above decree was made in
LrOtpidge v. VatMe, and after that decree appears not to have been prosecuted.
Petrus Vatable, Petrus Garesche et socii proprietarii navis
cujusdam vocatae The Jane de Dvhlin, cujus Petrus Richards nunc
est vel nuper fuit magister, -ejusque, &c., et bonorum, &c., in
eadem per navem quandam privatam bellicam vocatam The
Whitehaven, Galley, in consortio alterius navis privatae bellicsB
vocatae The Provost, Galley, cujus Josephus Wheeler est Capi-
taneus, capta et seizita contra dictam navem The Provost, Galley,
ejusque, &c., et tormenta ejusdem, dictumque capitaneum
Wheeler in specie, necnon contra Nathanaelem Wraxall et socios
pro interesse suis in eisdem intervenientes.
Exton. Sayer.
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302 RECOBDS— HIGH COURT OF ADMIRALTY
im FOWLER V. LIVING.
THE JOHN AND MARY.
Dispute as to possession of masts and rigging. Decree for delivery of same,
and for £100 damages. Ad. Ct. Assignation Book, 4th July, 1714.
Johannes Fowler proprietarius navis cujusdam vocatae The
John and Mary, Soy, ejusque, &c.y contra quendam Thomam
Living.
Ooodale. WUlymoU
Ad audiendum sententiam.
Ooodale petiit sententiam per eum ultimo die juridico por-
rectum legi et ferri, WiUymott dissente. et petente partem suam
dimitti. Dominus anditis, &c.y finaliter interloquendo ad peti-
tionem Ooodale decrevit pront insequitur : That the masts and
rigging be restored to Fowler; and condemned Living in £100
damages and also in expenses. Ooodale porrexit billam expen-
earum; Dominus taxavit eandem ad £90 .... Ooodale fecit
fidem de expensis, &c. Monitio ad tradendum vela, &Cy et ad
eolvendum sortem principalem et expensas in£ra mensem, non
estrahenda infra 15 dies, pro damnis et expensis.
TAYLOR V. THOMPSON.
Personal action for damages by owner against master ; Ad. Ct. AsDignation
Book, 12th Nov. 1714.
Johannes Taylor proprietarius navis cujusdam vocatae The
Supply (cujus Carolus Roakes est magister), ejusque, &c., contra
^rhomam Thompson magistrum navis cujusdam vocatae The
ratience de Arundell in causa damni.
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COURT OF DELEGATES. 803
BALL V. BRIGHT. ni3
Personal action by mate against master. Injunction granted and afterwards
dissolved ; Ad. Ct. Assignation Book, 25th Feb. 1713.
Johannes Ball nuper magistri socius navis Ad andiendum
cnjosdam nuper vocatce The Nicholson con- banc cansam Suma-
tra quondam Danielem Bright nuper ma- rie in hunc diem
gistrum ejusdem nayis. ad petitionem
Bushworth.
Bushworth. Bogg.
25th Feb. 1713. — Copia ordinis CurisB Cancellaride pro disso-
Intione injunctionis in hac causa per Edwardum Wheeler intro-
ducta fuit.
ORDO DOMINI JUDICIS. I7i4
General order as to sealing of warrants ; Ad. Ct. Ass. Book, llth Dec. 1714.
The Judge (Dr. Newton) declared that all warrants which are
to be sealed shall be sealed with the seal of the Lords of the
Admiralty, their Lordships haying given leave to use the same,
and that the words '' sub sigillo Officii magni Admiralli Nostri
magnae BritannisB, &c., quo {m) in hfi,c parte utimur " be used
instead of the words sub sigillo magno vel ad causas ; and also
that he appointed Walter Graw officer of the Court till further
order.
HANSON V. GODFREY. nis
Wages. Proportionate part of wages decreed up to loss of ship ; Ad. Ct.
Assignation Book, 12th March, 1718.
Derick Hanson et socii nuper nautse navis cujusdam vocatas
TheAnney Galley (cujus Benjaminus Clark defunctus nuper et
postea Nicolaus Kidgell fueruntmagistri) contra Sherman Godfrey
et Gulielmum Coleman nuper proprietarios | partium dictae navis
ejosque, Ac-
Garret. Sayer.
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304 EECORDS-HIGH COUBT OF ADMIRALTY.
1718 Ad objiciendum contra computum (?) per Bayer in hac causa
Hijjaos exhibit. . . . et ad audiendum yoluntatem Domini super liquida-
OoDFitET *i^^® decreti interloc. in hac causa interpositi in hunc diem ad
ejus petitionem.
Sayer alledged that he hath tendered to the mariners in this
cause more than was due, and therefore prayed his clyents to be
dismissed with expenses; Oarrett petente ut prius. Dominus
habita matura in hac parte consideratione pronunciavit prout
sequitur, videlicet : —
£ s. d.
That the value of the ship Anne^ galley, and her
outset at the port of London does amount to • 830 11
That the freight of eighty negroes taken on
board on the coast of Guinea, if the ship had
arrived at St. Christopher's, would, at £5 a head,
have amounted unto 400
And that the whole wages of all the mariners of
the said ship, from the port of London to the
time she was lost, viz., the 19th of August, 1717,
amounts to 306 13 8
1537 4 8
That the value of the iron and materials of the
said ship saved, deducting £40 paid thereout
for salvage, amounts to 30
And that the freight of the seventeen negroes
saved, at £5 per head, amounts to ... . 85
Sum total of the profit . . 115
That if the ship had not been lost, there would have been due
to the mariners in this cause the wages following, viz. : —
To Derick Hanson, from the 11th of December,
1716, to the 19th of August, 1717, at £1 3^. per
month 9 10
To Margaret Hornby, widow and executrix of John
Hornby, late cooper of the said ship, from the
11th of December, 1716, to the 8th of June, 1717,
at £1 15». per month 10 7 8
19 17 8
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COURT OP DELEGATES. 305
That wages in this cause are by law dae and ought to be paid 1718
according to an average of profit and loss in this behalfe, made Hansoh
and sustained as follows, viz. : — Godfrey.
£ 8. d.
To Derick Hanson 14 3
To Mary Hornby, widow and executrix of John
Hornby 15 6}
1 9 9|
The Judge therefore condemned Sayer^s clients, viz., Sherman
Godfrey, owner of two-ninth parts of the said ship, and William
Coleman, owner of one other ninth part of the said ship, in three
ninth parts of the said sum of £1 9^^ 91(2., viz., in the sum of
9s. ll\d. for the wages aforesaid; and ordered the same to be
paid to the said Derick Hanson and Mary Hornby, or to their
lawfuU attorneys, sine vero expensis. Monitio ad petitionem
Oarret ad solvend. dicta salaria imediate post, &c. Sayer suscepit
(?) pro dictis salariis.
MILTON V. MAUNDRELL. 1719
THE BLESSING AND THE JOHN AND SABAH.
Collision. Owners of the ship sued condemned in damages and costs, their
ship having run the other down " wilfully ; " Ad. Ct. Assignation Book, Ist De-
cemher, 1719. Sentence affirmed on appeal, except that as to costs no order was
made (ddetd dawul^ pro expense); Delegates' Assignation Book, 8th Nov.
1720, nom. MaundreH v. MHUm,
Ist December, 1719. Gulielmus MiUon, Johannes Underwood,
et socii proprietarii bonorum, rerum (?), mercinmi et mercimoni-
orum in nave qu&dam vocat& The Blemng of Waierford^ cujus
Petrus Duboyn fuit magister, onustorum contra navem quandam
Yocatam The John and Sarahy cujus Adamus Oldford defnnctus
nuper fuit magister et Bichardum Maundrell et socios pro interesse
suis intervenientes in causa damni.
Sayer^ jun. Sayer.
Two Trinity Masters did attend at the hearing of the cause.
X
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506 EEOOKDS— HIGH COURT OF ADMIRALTY.
1719 SayeTy jun., petiit partes Bayer condemnari in damno per
jfiLTON partes suas in hac parte sustenta et libellata et in expensis.
Mai VDRELL ^^y^^ petiit partes suas ab impetitione partium Bayer, junior.
The liLESjjrNCr dimitti cum expensis, et porrexit sententiam ad eundem affectum,
John avu quam petut fern.
Dominus auditis probationibus advocatis et procuribushincinde
finaliter interloquendo ad petitionem Sayer, jun., pronun-
ciayit partes Sayer, junior, sustinuisse damna, and that the John
and Sarah had wilfully run down the Blessing, ideoque condem-
navit partes Sayer in damnis et expensis, et assignavit ad audi-
endum voluntatem suam super liquidatione damni et taxatione
in diem Martis 15™ instan. in aurora (?).
SSarah.
t
1720 DE LA FOUNTAINE v. CARGO EX THE PARKER
Dispute as to right to cargo ; Ad. Ct. Assignation Book, 3l8t Dec 1720.
Noah de la Fountaine contra bona in schedula infrascripta
mentionata nuper in nave quadam vocata The Parker, galley,
(cujus Johannes Winacot ver Gerardus King est magister) onosta
tanquam ad, &c., spectantia et contra dictos Winacott et King
in specie ac omnes alios in genere jus titulum vel interesse in
dictis bonis schedulatis habentes sen habere praetendentes.
Schedula praBmentionata.
Five bales .... each containing thirty or forty ....
marked as in the margent (the marks are in the margin).
Comparuit Sayer, jun., et exhibuit pro Gerrard King magis-
tro dictse navis, et allegavit dicta bona schedulata esse arrestata
vigore warrantis hujus curiae dictumque magistrum (?) signasse
billas onerationis ad tradendum dicta bona apud Ligurum dic-
tamque navem propediem esse decessuram super dicto viagio
cum eisdem bonis, quare petiit eadem bona ab arresto relazari,
frc, in praesentia Sayer exhibentis pro Noah de la Fountoine et
allegantis eum esse proprietarium dictorum bonorum eademqne
in dicta nave onerasse et ad probandum eandem (sic) exhibibuit
attestationemjuratamdictae partis suae et ob causis in eadem men-
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COURT OF DELEGATEa 307
tionatis petentis dicta bona ab arresto rela.xari et parti 8U8b 1720
tradenda fore decemi sub cautione in duplici valore dictorum ^deH
bonorum in eadem attestatione mentionatamm. Dominus per- ^^^^^^
lecta attestatione prsedicta decrevit dicta bona ab arresto relaxari Cargo ex The
Pabkeb.
et a nave praedicta exoneranda et dicto Noah de la Fountaine
tradenda interposita cautione in duplici valore dictorum bonorum
S. D. N. Regi de solvendo valorem eorundem casu quo pro inter-
esse alius personce in dictis bonij per banc curiam pronunciabitur
necnon soluto prius dicto magistro dimidio nauli et decrevit hunc
actum exemplificandum fore et magistro tradendum.
RUSSELL V. HAYS. 1724
THE UPNOB CASTLE.
Personal action for damages by master against pilot; Ad. Ct Assignation
Book, 4th Feb. 1724.
Johannes Russell magister navis cujusdam mercatoriag vocataa
The Upnar Castle contra Johannem Hays nuper naugogum dictae
navis in causa damni.
Garrett. Botis.
In sententiam ex secunda in hunc diem ad petitionem Bovs.
Oarrett allegavit intentionem suam (?) in ejus libello sufHcienter
fundatam et probatam, ideoque petiit pro damnis libellatis pro-
nunciari, partemque Bovs in eisdem ac in expensis condemnari ;
Botis dissent, et allegante partem Oarret onmino defecisse in
probationibus contentorum ejus libelli ideoque petente partem
suam dimitti ab ejus instantia cum expensis. Dominus auditis
prius probationibus in hac causa factis ac advocatis et procuribus
hincinde habitaque matura consideratione totius negotii finaliter
interloquendo ad petitionem Bom pronunciavit partem Oarret
defecisse in probationibus ideoque dimisit partem Bovs ab ejus
instatia et impetitione et condemnavit partem Oarret in expensis.
Bona porrexit billam expensarum ; Dominus taxavit eandem ad
£15 .... B0U8 fecit fidem de expensis, &c. Monitio ad solvend.
expensas infra 15 dies non extrahenda infra 15 dies; Oarret
dissentiente.
X 2
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308 RECOEDS^HIGH COURT OF ADMIRALTY.
172G REED V. WELLFOED.
THE THOMAS AND JANE AND THE ISABELLA,
Collision. Defendant dismissed without costs, plaintiff failing to prove his
libal; Ad. Ct. Assignation Book, 20th Jan. 1726; Act Book, 20th Jan-, 1726
(fol 179). No appeal.
Johannes Eeed Adamns Bird et socii proprietarii navis cnjosdam
vocatae The Thomas and Jane, ejusque, &c., et contra Johannem
Wellford juniorem magistrum na-v is cujusdam vocatae The Isabella
of Newcastle in causa damni.
Farrantj jun. Ev. Sayer. Oanrett.
Dominus {Sir H. Penriee), auditis advocatis et procuratoribus (1)
liincinde,habitaque matura consideratione finaliter interloquendo
prominciavit partes Farrant defecisse in probationibus et dimi-
sit partem Garrett, sine vero expensis. Farrant protestatus est
lie gravamine et de appellando.
Ad sententiam ex secunda in bunc diem ad petitionem Ever.
Sayer y pro Farrant, jun.
Procures hincinde respective exhibuerunt chartas.
Deinde Farrant, jun., allegavit intentionem suam in libello
ex parte sua dato et admisso fuisse et esse sufficienter fundatam
€t probatam et petiit pro damnis et expensis de jure debitis
condemnari ac jus, &c., in praesentia Coohe pro Oarrett dis-
sentientis et allegantis partes Farrant, jun., defecisse in pro-
bationibus, ideoque petentis partem suam dimitti, &c., cum
expensis, &c. Dominus auditis advocatis et procuratoribus hinc-
inde habitaque matura consideratione ad petitionem in prte-
Bentia (?) Cooke pro Garrett finaliter interloquendo pronunciavit
partes Farrant defecisse in probationibus et dimisit partem
Garrett sine yero expensis. Farrant protestatus est de gravamine
et de appellando.
[(1) The following words are here prox Ad informandum.
struck out: Ad petitionem Farrant, Whether the rusticum judicium can be
juti., assignavit ad audiendum volun- admitted in this cause ?
tjitcm quoad judicium rusticum in
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COUBT OP DELEGATES. 309
The entry in the Act Book, 20th January, 1726, fol. 179, is as follows :— 1726
Ad sententiam ex secunda in hnno diem ad petitionem Beed
Everardi Sayer, pro Farrant, jiin. Wdilford.
Quo die procuratores hincinde exhibuemnt chartas maritimas '^^^f^^
in quibus respective chartis depingnntur cursus navales dictarum and Thb
nayinm The Thomas and Jane and The Isabella tempore damni in
hac parte sustenti ; et deinde dictus Far rani, jun., allegavit
intentionem suam in quodam libello articulate ex parte dictorum
Joh. Beed Ad. Bird et sociorum partium suarum alias in hac
causa date et admisso mentionatam fuisse ac esse sufficientes
fandatam et probatam ; Quare petiit Johannem Wellford juniorem
partem Oarrett in damnis libellatis ac etiam in expensis de jure
debitis condemnari, ac jus, &c., in prsesentia Cooke pro Oarrett
dissentientis et inficiantis allegata per Farrant, juniorem, esse
yera et allegantis dictas partes Farrant in probatione con-
tentorum in libello defecisse; ideoque petiit dictam partem
Oarrett ab instantia et impetitione dictarum partium FarraM
dimittendas et absolvendas fore decemi cum expensis, ac jus, &c.
Unde Dominus auditis primitus (?) probationibus in hac causa
fiactis ac advocatis et procuratoribus hincinde habit&que matura
eonsideratione totius negotii finaliter interloquendo ad peti-
tionem Coolce pro Oarrett pronunciavit partes Farrant in pro-
batione contentorum libelli ex eorum parte in hac causa alias
dati et admissi defecisse; ideoque prsefatum Johannem Well-
ford juniorem partem Oarrett ab instantia et impetitione dictarum
partium Farrant et ab omni ulteriore judicii in hac parte obser-
yatione dimittendum et absolvendum fore de jure debere, sicque
dimisit et absolvit ; cautionemque per eundem Johannem Well-
ford eisdem Johanni Beed Adamo Bird et sociis yicesimo prime
die mensis Decembri Anno Domini 1722 in hac causa inter-
positam relaxavit, sine vero expensis; dicto Cooke acceptante
quatenus, &c., et quatenus contra dissentiente, &c.; dictoque
Farra/nt dissentiente et protestante de grayamine et de appel-
lando.
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310 EECORDS— HIGH COURT OF ADMIRALTY.
i^az ALSTROM V, HOUTTUYK
^— THE SUCCESS.
iPossession suit. Decree for bail in double the value of the ship; Ad. Ct.
Assignation Book, 12th May, 1727.
Jonas Alstrom, Georgius Logie, et alii contra navem qnandam
nunc vel nuper vocatam The Success alias The Prince William
(cujus dictus Georgius Logie est vel nuper fuit magister), ejusque,
&c., et bona res merces et mercia in eadem onusta tanquam ad se
spectantia et contra Petrum Maartens Houttuyn et socios pro
interesse suis intervenientes necnom contra omnes, &c.
Ever. Sayer. Smith.
• . . . Dominus decrevit possessionem navis et bonorum, Ac,
partibus Ever. SayeVy interposita prius per eos cautione in duplici
valore navis et bonorum juxta apprais. in Registro remanent to
answer the demands of Houttuyn & Company upon the said ship
and cargoe, timber and cordage, ^c, &c.
In OtdUm v. 27.e Bichard and William^ 3rd January, 1718; DinwiddieY.
Bravo, The Eaglebright alias The Benjamin^ 16th July, 1730; The Dolphin,
1740 ; The Peggy, 16th May, 1809 ; similar decrees for bail in double the value
of the ship or property in dispute were made.
EWER V. THIRKETTEL.
112^ THE ROSE.
This appears to be a personal action for damages by owners of cargo against
the master of the carrying ship; Ad. Ct. Assignation Book, 25th February,
1729.
Nathaniel Ewer, Johannes Child, Jo. Knight, Carolua
Wilkins nuper proprietarii quorundam bonorum nuper in nave
mercatoria vocata The Bose, brigantine, (cujus Samuel Wilson
nuper fuit magister), onustorum, contra Mariam Thirkettel yi-
duam relictam et executricem testamenti Henrici Thirkettel
defuncti nuper magistri navis cujusdam vocatae 7%« Bichard in
causS damni.
Sayer. Farrant.
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COUET OF DELEGATES. 311
• . • . DominnSy anditis probationiBus in hac causa factis ac 1729
advocatis ac procuratoribus hincinde, finaliter interloquendo ad eweb
petitionem Farrant dimisit dictam Mariam Thirkettel, partem xmBMrrncL.
snam, ab instantia et impetitione dictarum partiom Sayer et ab
omni alteriore judicii in hac parte observatione, sine vero ex-
pensis.
WOOD V. GERMAIN. 1730
THE PBTBONELLA.
Action for damages by a seaman against the master ; Ad. Ct. Assignation
Book, 2l8t November, 1730.
Thomas Wood nuper nauta navis cnjusdam vocat© The Petron-
dla contra Henricum Germain nuper magistrum dicta) navis in
causa damni.
Chedyn. Sayer.
Ad audiendum voluntatem Domini super admissione alle-
gationis ^vLede (?) pro Sayer data?, et sinon, &c., ad sententiam
ex secunda in hunc diem ad petitionem Cheslyn.
Sayer declaravit se nullam dedisse allegationem. Chedyn
petiit pro damnis libellatis pronunciari, partemque Sayer in
dictis damnis ac etiam in expensis condemnari. Sayer allegavit
Cheslyn defecisse in probationibus, ideoque petiit partem suam
dimitti cum expensis. Dominus auditis probationibus in hac
causa factis, ac advocatis et procuratoribus hincinde> habitaque
matur& consideratione totius negotii, finaliter interloquendo ad
petitionem Sayer pronunciavit partem Cheslyn defecisse in proba-
tionibuSy ideoque dimisit partem Sayer ab ejus instantia et
impetitione, cum expensis, quas ad summam quatuor librarum
taxavit et relaxavit cautionenu Monitio pro expensis praedictis
.... solvendis infra 10 dies non extrahenda infra idem tempus.
This case is one of many personal actions for damages for injury to person or
property which have been brought in Admiralty.
The following (most of them actions for injury to person) are other instances
of such actions : —
Bead v. Butlidge, 1735 ; wages and £20 damages for detain-
ing seaman's chest decreed.
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312 EECOKDS^HIGH COUET OF ADMIBALTY.
Curtis v. Habt, 1735 (1736?).
Drew v. Habdwicke, 25th June, 1740 (iw/ra, p. 315) ; £40
damages decreed.
Hughes v. Sauhdebs, 17th December, 1747; £50 damages
decreed,
WmoHT V. EvEBBSS, 19th June, 1750.
Beigqs v. Egebton, 16th March, 1752.
JoriNSON V. Moody, 29th January, 1753.
FieuEB V. Webb, 29th January, 1754.
BARTiiETT V. Cotton, 6th October, 1759.
Dick v. Edwabds, Trin. Term, 1771.
Groat v. White, 16th February, 1779.
Clegg v. Johnson, 22nd June, 1779.
Wii^LiAMS V. LoviE, 11th January, 1782.
Hanson v. Couet, 1786.
JoNEB V. Ashbubneb, 1788.
Jones v. Ibvin, 1788.
Brown v. Scott, 1788.
Arnold v. Williams, 1788.
Brown v. Bolington, 1789.
Lake v. Willlois, 1789.
Sandebs v. Gabbett, 25th April, 1796.
BiYiN V. Dixon, 26th January, 1820 ; £50 damages decreed.
Thohpson v. Mahon, 1823 (circ.).
CuTHBEBT V. Kellock, 6th July, 1825 ; £120 damages decreed.
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COURT OF DELEGATES. - 313
TOMLINSON V. VOGUEL. 1733
THE ELEANOR AND THE WILHELMINA.
This was a suit by the owners of the Eleanor and owners of cargo on board
her against the owners of the WUhdmina for damage to the Eleanor and her
carga The suit seems to have been in rem, the Eleanor and her cargo having
been arrested. The owners of the cargo on board the WUhdmina intervened
to protest against the arrest of the cargo, but the decree seems to have
gone against cargo as well as ship, and to have been afi&rmed upon appeal. Ad.
Ct. Ass. Bk. 26th January, 1733 ; 24th June, 1735 ; Delegates' Assignation
Book, 27th January, 1738; Delegates' Process Books, vol. 489.
26th Jannary, 1733. All persons cited being called, i^ prayed
a second default; Bayer and Cheslyn for Oarrett appeared for
Josiah Bollock, Nathaniel Newnham, jun.,and others, owners and
freighters of the goods, wares, and merchandizes on board the
William, otherwise Wilhelmdna, and alledged that by law the
said goods, wares, and merchandizes are not liable to the action
brought for the pretended damages done to the said ship Eleanor
and cargo, and therefore prayed the said goods, wares, and mer-
chandizes under arrest to be released from the arrest, and delivered
to the respective owners and freighters without giving bail, and
then exhibited attestations upon the oaths of the said Josiah
Bullock and N^th. Newnham and also of Casten Claessen (?) and
Clans . . • Beidt ; Lee denying what is alledged by Sayer to be
true, and that no bail is given, and that therefore Sayer cannot
be heard, and praying a second default
The Judge (Sir H. Fenrice) having heard the advocates and
proctors on both sides at the petition of Lee, pronounced a second
de£Etult to have been incurred, and continued the certificate until
the next Court. Lee's clyents to make oath of their damage
within three days.
24th June, 1735. Sir H. Fenrice pronounced that the WUhel^
nUna had done damage to the Eleanor and her lading, and there-
fore condemned Sayers* client in the said damages and also in
expenses.
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314 RECORDS— HIGH COURT OF ADMIRALTY.
1734 VOGUEL AND OTHERS v. TOMLINSON AND OTHERS.
Sayer. Lee.
For sentence and further informations at the petition of both
proctors. Informations were finished. The Judges took time
to deliberate, and assigned the cause for sentence on Saturday next
in the evening without the attendance of council.
Saturday, the 27th day of January, 1738, before the Honourable
Sir Ftancis Page, Knight, one of the Justices of H. M. Court of
Common Pleas, Sir Lawrence Carter, Knight, one of the Barons
of H. M. Court of Exchequer, the Worshipful Edward Kynaston,
George Lee, and Thomas Walker, respectively Doctors of Laws,
Judges (amongst others), Delegates, in the Common Hall of
Sergeants' Inn, Chancery Lane, London, between the hours of five
and eight in the evening ; Edward Smith, Deputy Registrar.
For sentence at the petition of both proctors. Sayer porrected
a sentence which he prayed to be read. Lee porrected a sentence
which he prayed to be read. The Judges having heard the
advocates council and proctors on the former Court, and having
taken time to deliberate to this day, ordered the sentence pre-
sented by Lee to be read, which was read accordingly ; thereby
pronouncing, decreeing, declaring, confirming, remitting, and
doing all things as in the said sentence is contained ; the clause
of expenses being first deleted. Many witnesses were present
1733 BOON V. THE FORDWICH.
Bottomry bond pronouncjed for ; Ad. Ct. Ass. Bk., 24th May, 1733.
The Judge pronounced the sum of £755 10». 3<Z, to be due to
Charles Boon, Esquire, for the principal and risque of the money
advanced by him according to the bottomry bond given him by
John Barnard, late master of the ship Fordtoich, and condemned
Holman's clyent in expenses.
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COUBT OF DELEGATES. 315
GIBBONS V. THE SUSANNAH. 1734
FROST V. THE BETTY.
In these cases the master sues for his wages together with the mariners ; Ad.
Ct. Ass. Bk., 23rd March, 1733 (1734), 29th April, 1734.
GIBSON V. CHAPMAN. i74o
THE SATISFACTION AND THE BLESSING.
10th February, 1740. Collision. Defendant dismissed, no order being made
as to costs.
DREW V. HARDWICKE.
THE PEABL.
Wages and damages for ill-usuage decreed; Ad. Gt. Assignation Book,
26th June, 1740.
Nathan Drew the younger, late mariner of the ship the Pearly
galley, of Bristol, against Eustace Hardwicke, now or late master
of the said ship.
Holman. Lee.
To hear sentence on the second assignation at the petition of
Holman.
. . • The Judge {Sir H. Penriee) . • . did by his interlocutory
decree at the petition of Holman pronounce that wages are due
to Holman* s clyent for his service performed on board the ship
from the 9th of September, 1736, to the 11th of August, 1737, at
£1 12s. Od. per month, and decreed to be deducted thereout
£1 2«. 6i. allowed to be received, &c. &c. . . .
The Judge likewise pronounced that the said Nathan Drew
hath sustained £40 damages, by reason of the cruell usage in the
said libell mentioned. The Judge condemned the said Eustace
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316 BECOBDS-HIGH COUET OF ADMIBALTY.
1740 Hardwicke, Lee^s clyent, in the said wages and damages, and also
Pbs^ in expenses, &c. &c.
Haedtwicke.
174+ THE DUKE OF DORSET.
The following note of a case decided in 1744, with reference to the jurisdiction
of the Lord Warden of the Cinque Ports, is taken from a small MSS. collection
of reports now in the collection of pa^^ers and records transmitted from the
Admiralty Registry to the Record Office. The collection is contained in a
bundle labelled 8, a. The report is followed verbatim.
Act of Parliament prohibiting commerce. No goods brought
from Spain to be confiscated unless imported into Great Britian.
They read, Attachment, 7th of June, 1740 ; Monition, 2l8t of
June, 1740 ; Allegation, 14th of J une, 1740 ; Preparatory Exami-
nations.
We read. Inhibition to Cinque Ports, 3rd of November, 1740 ;
Certificate of Service, 10th and 13th of November, 1740 {sic).
Br. Andrew. — No protestation against jurisdiction. Appearance
at Dover. Objection ought to be in limine. Lord Warden
Supreme in his own court. He is not as Judge of Admiralty at
Gibraltar a Vice- Admiral. They proceed as enemies' goods
stranded, and seized in the limits of the Lord Warden's court
Quserej whether enemies' goods seized in an admiral's jurisdiction,
that jurisdiction has a right to proceed against them, as such.
Lord Warden can't proceed against these goods in the High
Court of Admiralty. Judge of Admiralty in England can't pro-
nounce them to be Prize. A Prize is that which is taken by a
man-of-war or a privateer. Insists that this is not a Prize cause ;
they insist that they are not a Vice- Admiralty Court, but that
they have a full and exclusive jurisdiction. Lord Warden don't
claim it by virtue of the Act of Parliament, but by virtue of his
right of Lord Admiral of the Cinque Ports. This Admiralty is
as ancient as any in England. Act of Parliament only relates
to the preparatory examinations and ship papers, which it makes
requisite. No court in England where it can be tried whether
they are enemies' goods. Admits that the goods of neutrals and
friends, if proved, may be restored.
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COURT OF DELEGATEa 317
Dr. Pinfold. — Objection as to jurisdiction ought to be made 1744
upon return of the process. Verney declared to McNamara that Thb Duke of
he had burnt all the papers. ^"^^
Dr. Paid. — Praeda legitima belli. If only wreck, then we might
claim ; therefore, if war prevents our claiming, it is because they
are (sic). We could not object to jurisdiction before a claim is
admitted. Want of jurisdiction is a nullity, which may be ob-
jected at any time. Lord Warden's Court subject to treaty. No
precedent quoted of any goods of the enemy condemned by Lord
Warden. Shall we not be at liberty to prove our claims, and that
the ship is a Portugese ship ? Not one claim for an enemy.
Dr. Edmunds. — Goods not wrecked, but taken out of the ship
and brought on shore. They make it neither a cause of prize, nor
a cause of wreck ; a wreck of enemies' goods. It is the nature of
goods, whether prize or wrec^, that makes it forfeitable. If the
Lord Warden has such an inherent jurisdiction as to prizes, his
power is greater than the Lord High Admiral. Appeals from all
Courts of Admiralty to the council, by commissions for prizes ;
agreeable to treatys. Appeals must lay to the counciL No
precedent ; no grant to shew that enemies' goods do belong to the
Lord Warden when taken in his limits ; Edw. 3. No claim
of rights and priviledges made by Lord Warden, presumed that
goods of enemies are not granted to Lord Warden. They have
quoted precedents in the Prize Court, in order to guide this Court
in this cause.
The Court. — Not fond of jurisdiction. The Lord Warden has a
jurisdiction in this case. Sir Lionel (sic) Jenkins reports that
Lord Warden condemned a Prize. There was a review and
sentence confirmed. Cinque Ports out of the jurisdiction of the
Lords of the Admiralty. Power granted to the Judge of Ad-
miralty in those places where he has jurisdiction. This no cause
of prize. Lord Warden's jurisdiction. If no person can make a
legal right to these goods, they belong to the Lord Warden.
Order in Council in order to settle matter of prize and they
are declared to be perquisites of Admiralty. Lord Warden will
apply for a commission for prizes. English claims for Thornton,
Hall, Pennington, and McNamara. Englishmen can't trade with
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318 RECORDS— HIGH COURT OP ADMIRALTY.
1744 an enemy. Law of nations prohibits commerce with enemies,
f BB DuKB or They are confiscable. The claims of the English can't be re-
DDuasrr, ceived, but must be rejected. Wooslyn and Buttlidge of Dun-
kirk. Strodg presumption that the ship is Spanish. A Portugese
ship can't carry enemies' goods. Van Damme, Van Duffelle, and
Hennessy, Austrians, admit there is reason to admit these claims.
Rejected claims of Thornton, Hall, Pennington and McNamara.
LEE V. ROUS.
THE TURIN.
Wages. Decree against shipowners or against the ship will not be made in suit
against master. Ad. Ct. Assignation Book, I5th June, 1750.
John Lee and Company, late mariners of the ship called the
Ttirin, otherwise Drvrt/y against Joseph Rous, master of the said
ship.
Hu^ghes. Cheslyn.
To hear the cause summarily at the petition of both proctors.
Hughes prayed that the judge would pronounce wages to be
due to his client, according to the summary petition, and con-
demn Joseph Rous, Cheslyn's client, in the sort principal and ex-
penses. Cheslyn dissented, and as a peremptory exception alleged
that the summary petition given in this cause is against the ship
and her tackle apparel and furniture, and not against Joseph Rons,
his client, for whom alone the bail in this cause is given, and
further alleged that therefore no issue is taken between his client
and the said John Lee, so that his client cannot in law be afiected
by any decree to be made in this cause at this time ; neither can
the said ship or her owners be affected thereby, by reason that
there is not any appearance for any of them, nor are they in con-
tempt. The judge (Sir H. Penrice), by interlocutory decree,
pronounced that Hughes' client hath failed in the proof of his
summary petition, and dismissed Chesh/fCs client from this suit
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COURT OP DELEGATES. 319
BLOCK V. HOPTON, ^^51
THE VROW DOROTHEA.
No jurisdiction in Admiralty in a case of illegal importation; Ad. Ct. Assigna-
tion Act, 12th July, 1751.
A business of appeal promoted by Pieter Block, master of the
ship called the Vrow Dorothea^ against William Hopton, deputy
naval officer in the port of Charlestown, in the province of South
Carolina.
Oostling. Farrer.
For information and sentence.
On which day Oostling prayed that the judge would pronounce
for the appeal and complaint in this behalfe made, and that the
judge from whom this cause is appealed had no jurisdiction to
enquire as to the importation or exportation of goods or offences
at Jamaica contrary to any of the Acts of Parliament, in the pre-
sence of Farrer dissenting, who prayed that the judge would
pronounce against the appeal, and affirm the decree of the judge
appealed from and decree this cause to be remitted with costs.
The judge {Vr. Chapman, surrogate for Sir H. PenHce), having
heard advocates as to the jurisdiction of the judge appealed from,
declared that the judge appealed from had no jurisdiction to
enquire as to the importation or exportation of goods at Jamaica
contrary to Act of Parliament. Farrer, with all due reverence,
protested. The judge assigned i^arre^* to prosecute his appeal by.
the first session of next term.
PILLANS V. SHERBURNR 1754
THE JAMES AND THE SWALLOW, PACKET.
Collision. Suit against the master of the ship alleged to be in fault in
person ; Ad. Ct. Assignation Book, 25th May, 1754.
William Pillans, late master and company, owners of the ship
called the James and her tackle, apparel, and furniture, and John
Walker and company and others, owners of all and singular the
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320
1754
FlLLANS
8ii«^iorE packett.
The Jawes
EECORDS— HIGH COURT OP ADMIRALTY.
goods, wares, and merchandizes laden therein, against Joseph
Sherburne, now or late master of the ship called the BwaUm
AKii The
Swallow^
Pauket*
Smith.
Farrer.
For sentence on the second assignation at petition of both
proctors.
Captain Michael Wilkins Conway and Captain Joseph Carteret,
Trinity masters, attended, and their informations having been
had and the proofs read, the Trinity masters delivered their
opinion as to the situation and position of the ships at the time
of the damages ; which being done, the judge, haying fully and
maturely deliberated by his final interlocutory decree at the
petition of Smith pronounced that SmiiVs clients have sustained
damage by Fcmrer's clients, and condemned Farrer^s clients in
such damages and costs, and assigned to hear the order of Court
on liquidating the damages and taxing costs next court ; Farrer
dissenting, and, with all due reverence, protesting of a grievance
and of appealing.
WoodvKird v. LonghotTiam^ The Elizaheih and The Globe^ and De KrommetU
\% Chevalier y TJte Young Ruijter^ and The Union, are other instances of damage
suits for collision being brought in personam against the master of the ship
alleged to be in fault ; see Ad. Ct. Assignation Book, 7th June, 1758 ; 13th
June, 1768.
175G
ELLIOTT V. LISTER.
THE JOHN.
Wages. Statutes of Limitation no bar to action in rem and in personam for
wi^es; Ad. Ct. Assignation Book, 29th June, 1756.
William Elliott, late boatswain of the ship called the John,
whereof William Blacklock formerly was, and .... now is or
lately was, master, against the said ship and her tackle, apparel,
and furniture, and against William Lister intervening therein.
Farrer. Hiighea.
For information in law.
Hughes alleged that this suit is barred by the Statutes of
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COURT OP DELEGATES. 321
Limitation of time for commencement of actions. Farter alleged 1756
that this suit is nowise barred by the statutes, or any of them, or bllkxtt
that in case it was so barred such exception ought to have been ^j^Jg^
taken in limine^ and ought not to be made after issue joined, or The John.
at least in the present state of the cause, and therefore prayed
the Judge finally to decree. The Judge {Sir Thomas 8alu8hwnf\
haying heard the arguments of council learned in the Common
Law and advocates, thereupon by final interlocutory decree pro-
nounced that wages are due as prayed by the libell, and con-
demned Hughes* client in sort principal (1) and expenses. To
hear the order of the Court on taxing costs next court : Farter.
DE KEOMMENT v. CHEVALIER i758
THE TOUNQ BUIJTEB AND THE UNION.
CollisioQ. In this case the master sues on behalf of himself and owners, and
the action is against the master of the other ship in person ; Ad. Ct. Assigna-
tion Book, 13th June, 1758.
Cornelius de Kromment, late master of the Totmg Bvdjter, of
Botterdam, acting for himself and owners of the said ship and
her tackle, &c., against Charles Chevalier, master of the ship
Umon, of Jersey.
Crespigny. Smith.
Sir Thomas Salusbwry pronounced that Crespigny* s client had
failed in the proof of the damages libellate, and dismissed Smith* s
client from this suit, and condemned Crespigny* s client in costs.
PUlans V, Sherbu/me^ 25th May, 1754, and Woodtuard v. Longbottom, 7th
June, 1758, are similar actions in personam against the master of one of two
ships in collision.
(1) Sors principalis.
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322 KECORDS—HIGH COUET OF ADMIEALTY.
ITC3 THE JAN AND ANTHONY.
The following is the common form of the title of a salvage action during the
eighteenth century; Ad. Ct. Assignation Book, 19th April, 1763.
Our sovereign Lord the King in his office of Admiralty against
& certain Dutch ship called the Jan and Anthony ^ of about 250
tons burthen, her tackle, apparel, and furniture and the goods
therein, being a ship and goods derelict flotsam, jetsam, or lagan,
and found at sea adrift at or about twelve leagues north-east of
Cromer, and brought into Yarmouth Eoads within the jurisdic-
tion of the Admiralty of England, and as perquisites of Admi-
ralty, and against all persons in general, and against Hans
Comelisz (ma.ster), and also against Thomas Ord, John Hill,
William George, and William Matley, intervening therein as
ealvors of the said ship and goods.
Comelisz, the master, intervening, prays restitution, giving bail to answer
t^alyage ; the salvors also intervening.
i^ BAKER V. MALIN.
THE HUNTER AND THE AMITY's FRIENDSHIP.
Collision without fault in either ship. No damages or costs given on either
tide; Ad. Ct. Assignation Book, 2 Sess, Hil. Term, 1764. There was an appeal
(wee Delegates' Assignation Book, 24th Jan. 1765), but it appears to have been
nltandoned.
liaker and others, owners of the Hunter v, Malin, owner of the
Amity's Friendship.
Altluim. Fuller.
Sir Thomas Salusbury, Judge, pronounced that Altham's client
Iiad not sustained damages by any unskilfulness of Fuller's client ;
I nit that the loss was merely accidental ; and therefore gave no
(Limages or costs on either side; and dismissed Fullers client
frtun all further proceedings in this cause.
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COURT OF DELEGATES. 32S
DALE V. HALL. 1765
THE LAUREL AND THE HOUGHTON. 2 8, H. T.
Collision. Owners of ship sued condemned in damages and costs. Difference
of opinion between Trinity Masters. Ad. Ct. Assignation Book, 2 Sess. Hil.
Term, 1766. No appeal.
Dale & Co., owners of the Laurel v. Hall & Co., owners of the
HatLghton.
Sir Thomas Salushwry pronounced that " the ship Laurel^ her
tackle, apparel, and furniture, guns, arms, ammunition, and pro-
vision, was lost by the default of the master and crew of the ship
H<mghton, and condemned FarrarU'a clients in damages and
expenses."
N.B. — In this case " the Trinity Masters declared their opinion
concerning the situation and position of the ships at the time of
the damage in question, and of their behaviour relative to the
accident, and, having diflfered in their judgment, the Judge, by
consent of the parties, gave leave to the assessors to consult a
third Brother, and make their report by the next Court, with the
other Trinity Master."
THE MARQUIS OF GEANBY. 1770
Collision between one of a fleet in charge of a convoy and the convoy herself
in which the convoy was sunk. Rule of division of loss applied by the Delegates.
In the Court below the convoy was found to have been sunk by the fault of the
merchantnian. Delegates' Assignation Book, 5th July, 1770 ; Ad. Ct. Assigna-
tion Book, 28th Jan. 1766 ; Delegates' Process, No. 1210.
Henry Bird & Company, owners of the ship called the Marquis
of Oranby (whereof Thomas Robson was master) against Henry
Clarke & Company, owners of the ship called the Bird (whereof
Henry Kirk formerly was and .... Scrafton now is master).
Gostling. Orene.
Captain Michael Wilkins Conway and Captain John Barker,
Y 2
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121 EECOEDS-HIGH COURT OF ADMIEALTT.
IITO iwo of the Elder Brethren of the Trinity House, attended, and
The MinQiifl^l^^ Judge haying heard informations and the proofs and adyo-
OF tinAsiiT. t»^teg^ ^ho Triuitj Masters deliyered their opinion, which being
c]i>ne, the Judge (Sir Thomas Salushwry) pronounced the ship
Marquis of Oranh/, her tackle, apparel, and furniture, guns, arms,
ammunition, and proyisions, to haye been lost by the default of
the master and crew of the ship Bird, and condemned Orene's
f'l tents in damages and expenses ; and assigned to hear on liqui-
dation of damages and taxation of expenses the first day of next
tenn, and in the meantime referred the liquidation thereof to
the Eegistrar, taking to his assistance merchants ; Chrene, with all
due reyerence, protesting of appealing.
5th July, 1770. Before €K>uld, J., Drs. Hay and Macham, Judges' Delegates.
Clarke & Company against Bird & Company.
Orene. OosUing, jun.
The Judges haying heard the adyocates, counsel, and proctors
on both sides, and haying maturely considered of the matter, by
t lieir interlocutory decree haying the force of a definitiye sentence,
pronounced for the appeal and reyersed the decree of the Judge
below, and pronounced that, under the circumstances of this case,
the loss of the ship Marquis of Grariby should be borne by both
parties equally ; and referred the liquidation of the damages to
tlie Begistrar, taking to his assistance merchants, and to make his
report thereon to the Condelegates ; and gaye no costs on either
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CODBT OF DELEGATES.
325
SUTHERLY v. MANCHESTER.
THE DILiaEKOE AND THE SOPHIA.
1775
CLARKE V. LINCH.
THE BNDEAVOUB AND THE PBNN.
NELSON V. DURHAM.
THE ANN AND MABY AND THE SUNNISEDB.
Decrees in these cases were made by Sir George Hay and Sir James Marriott,
condemning the owners of the ships sued in damages and costs, the collisions
having been caused by the default of the masters and crews; See Ad. Ct.
Assignation Books, 13th May, 1775 ; 29th June, 1779 ; 8th July, 1784.
1779
1781
DAY V. WALTERS.
THE ELIZABETH.
Bottomree. The following report is taken from an anonymous manuscript
amongst the papers transmitted from the Admiralty B^stry to the Becord
Office. See also Ad. Ct. Ass. Book, 23rd February, 1778; Delegates' Ass.
Book, 30th June, 1773.
James Day against the ship Elizabeth, John Scott, master, in a
cause of bottomree, and against Thomas Waltebs, owner of the
ship, intervening.
OrickUt
LushingUm.
Ship was chartered by said owner to Robert Palmer, to go from
London to Bath, in North Carolina, to take in a cargo of tar and
turpentine on the joint account of said owner and Palmer, and to
return to England. Sailed from London in ballast, and by
contrary winds put into Cowes, in the Isle of Wight, and there
took on board on freight sundry goods shipt by said James Day,
and consigned to Scott, the master, to sell, and lay out the pro-
1775
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326 BECORDS—HIGH COUET OP ADMIRALTY.
X775 ceeds in tar, and send home by another ship, or in good bills.
^^^ Proceeded on his original voyage, but met with tempestuous and
> - stormy weather ; lost her long boat and great part of her sheathing,
The " and was forced to put into Beaufort, in North Carolina, where she
LTZABETH, ^j^j^j^^j^^ somo rcpalrs to enable her to go to Bath, her intended
port, where she afterwards [arrived] and underwent a thorough
repair. That whilst she lay at Beaufort and Bath, Scott, the
master, sold a considerable part of Day's cargo for £100 and
upwards, and applied the same in repairing, refitting, victualling,
loading, and manning the ship, and in the purchase of a boat for
the ship's use to enable her to proceed to England. For which
sum of £100 Scott, the master, executed a bottomry bond unto
the said James Day, payable within twenty days after the ship's
arrival in England, with lawful interest for the same.
Note. — The master, James Scott, who gave the bottomree
bond, was examined. The witnesses to the bond were Richard
Nassau, Stevenson, and Wm. Tyler Kirby ; they were not ex-
amined. A person who knows the ship was repaired happened to
be in England, and he was examined ; and an officer at Cowes,
and another person at Cowes.
9th March, 1775 (1). Ship arrested by Day in cause of bottomree
civil and maritime.
11th March, 1775; bail.
The Libel in substance was as follows : —
In 1773 or 1774 the Elizabeth was chartered by T. Walter to
Robert Palmer to proceed from London to Bath, North Carolina,
and there receive on board a cargo of tar and turpentine on the
joint account of Thomas Walters and Robert Palmer, and return
therewith to Plymouth. In September, 1773, the Elizaheth, with
John Scott as master, proceeded on her voyage in ballast, and
was compelled by stress of weather to put into Cowes. Whilst
there Day shipped goods to the value of £102 and upwards on
board her on freight, consigning the same to J. Scott, the master,
for him to dispose of to the best advantage on account and at the
risk of J. Day. Day directed Scott to lay out the proceeds of the
goods in the purchase of tar, and authorized him to charter a
[(1) The following, down to the judgment, is a summary of the case as set
Qut in the MSS. report.]
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COURT OF DELEGATES. 327
ship to bring the tar home or to send the same proceeds by bill 1775
to London. d^^y
The Elizabeth met with bad weather in the Atlantic, lost her 'Walters.
boat, and suffered considerable dama&:e. On the 9th December, „ The
17o3, she put into Beaufort, in North America, when she under-
went repairs sufficient to enable her to proceed to Bath. She
arrived at Bath on the 20th March, 1774. There she was hove
down and underwent a thorough repair. At Beaufort, and after-
wards at Bath, Scott sold part of Day's goods for £100, with
which he paid for the repairs and a new boat, and also for vic-
tualling, refitting, and loading the ship. Day's goods were sold
as aforesaid in order to raise money to pay for the repairs, without
which the voyage home could not have been completed.
On the 10th of June, 1774, in order to secure to Day the pay-
ment of the £100, so advanced out of his moneys, Scott executed
a bottomry bond to Day for payment of the £100 and interest
within twenty-one days after her arrival in England.
On the 13th August, 1774, the ship arrived at Plymouth and
was ordered to London, having made considerable freight.
Day not being paid by Walters the amount of the bond,
arrested the ship for £300.
The respondent, Walters, alleged in his answer that Scott had
no authority from him to take Day's goods on board, and that
they were on board against his (Walter's) orders. That the ship
was consigned to Palmer in North Carolina ; and that he (Walters)
had requested Palmer to supply Scott with money for the use of
the ship. That Scott had £35 of Palmer, and might have had
more, if he had asked. That there were goods of Walters on
board to the value of £50, and cash supplied by Walters to the
amount of £30. That Palmer paid for repairs at Bath £60.
Denies that Scutt was under any necessity to hypothecate.
Scott in his deposition swears that he gave Day a bill for the
£100, and executed the bond as a collateral security.
23rd February, 1778. Sir George Hat/y Judge, by the Inter-
locutory Decree having the force of a definitive sentence in
writing, at the petition of Crickitt, pronounced the bottomree
bond to be due to Crickitt'a client as libellate, with lawfuU
interest for the same to the time of payment, and condemned the
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328 BECORDS— HIGH COURT OF ADMIRALTY.
1775 said Thomas Walters in the said bonds and interest^ and also in
^j^ the costs of this suit.
Waltbbs. ^^^ ^^^^ ^^ appealed, and on 30th June, 1733, the decision
The of Sir G. Hay was affinned with costs by the Delegates, Willes,
Nares, J J., Hotham, B., Dr. Macham (nom. Walters c. EoUier and
BavieSy assignees of James Day) : see Delegates' Assignation
Book, 1780-1785, fol. 153.
1785 STOKEE V. HUTTON.
THE friend's goodwill V. THE PEGGT.
Collision. Decree by Sir James Marriott, pronouncing the Peggy alone in
fault and condemning ber owners in damages and costs ; Ad. Ct. Assignation
Book, 9th December, 1785. Upon appeal to the Delegates the decree of the
Court below was varied ; both ships were found in fault, and the loss equally
divided ; Delegates' Assignation Book, 7th July, 1789 ; Delegates' Process.
John Stoker, late master and part owner of the ship called the
Friend' 8 Ooodwill, against a ship called the Peggy ^ whereof John
Skyeying (?) now is or lately was master, and against Robert
Button, owner of the said ship, intervening, in a cause of damage
civil and maritime.
Cooper. Shepherd.
9th December, 1785. — Sir James Marriott pronounced that the
said ship Friend's Ooodwill and her cargo were sunk and lost by
the default of the master and crew of the ship Peggy ^ for which
Shepherd's client had given bail, and condemned Shepherds
client in damages and expenses.
The case was appealed, the Judges Delegates being Gotdd, Ashurst, JJ^
Hotham, B., and Dr. Fisher. The Court appears to have had some difficulty in
arriving at a decision as to the merits. In the Delegates' Assignation Book,
11 th May, 1789, appears the following note (nom. Button against Stoker),
The Judges having consulted with counsel on both sides, did
by and with their consent refer the merits and the whole cause
to the two Trinity Masters present, viz., Capt. Thos. Brown
and Capt. George Burton, they taking to their assistance such
other Trinity Masters (other than those present (?) at the hear-
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COURT OF DELEGATES. 329
ing of the cause in the Court below) as by the Trinity Board 1785
should be directed to attend, for them to report their opinion to stokeb~
the Court whether the sentence appealed from ought to be ^^j^jj
sustained, altered or modified, or wholly reversed ; and directed The Fbibnd's
the Begistrar to write to the Trinity Board requesting that a ^^
third Trinity Master might attend the other two upon the The Peggy.
reference.
The interlocutory decree was as follows :
The Judges having heard the report of Captains George
Burton, Thomas Brown, and Gilfred Lawson Beed, the three
Elder Brethren of the Trinity House, to whom this cause had
been referred, read, and likewise having heard further informa«
tions by counsel on both sides, did by their Interlocutory Decrees
having the force and effect of a definitive sentence in writing
pronounce for the appeal made and interposed in this cause,
and that the Judges from whom the cause is appealed hath
acted wrongfully nully and unjustly; reversed the Decree of
the said Judges ; and in the principal cause (already by them
retained) did pronounce that the masters and crew of each of the
said ships FriencTs Ooodmll and Peggy ^ mentioned in the pro-
ceedings of this cause, were equally blameable in their conduct
as to the said two ships running foul of each other, and by which
means the said ship Friend* 8 OoodwUl and cargo were sunk and
totally lost ; that the loss or damage occasioned by the aforesaid
accident, and all costs, charges and expenses incurred or to be
incurred on account thereof, ought to be borne paid and sus-
tained by the said John Stoker and Robert Hutton, the owners
of the said ships, in equal moieties and share and share alike ; and
further pronounced, in pursuance of the said . . . , that the value
of the said ship Friend! 8 OoodtviU at the time she was sunk as
aforesaid was nine hundred pounds, and the cargo of the value of
one hundred and five pounds, five shillings, and condemned the
said Robert Hutton, Shepherd's party, in the sum of five hundred
and two pounds, twelve shillings and sixpence, and the moiety of
the value of the said ship and cargo; and at the petition of
Cooper decreed a monition against the said Robert Hutton for
payment of the said sum in fifteen days after service, the same
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330 RECORDS -HIGH COURT OF ADMIRALTY.
Vim not to go under seal till after fifteen days from hence ; and the
Btormh Judge directed the costs on both sides as well in this Court as in
HrTTos. ^^^ Court below to be borne and sustained by both parties in
^Ooi^Iw^''^' "* equal proportions ; and referred the bills on both sides to the
r. Registrar ; and assigned to hear on taxation of costs the first
session of next term ; present Shepherd and Cooper.
178S THE PROVIDENCE.
Bottomry. Bond given by owner of British ship in England is valid and can
1)6 sued on in Admiralty.
* The following note is taken from a book of Notes of Admiralty Cases in the
Record Office apparently in the handwriting of Dr. NichoU, afterwards Sir
John Nicholl, Judge of the Admiralty Court. For the decree admitting the
Libel, see Ad. Ct. Ass. Book, 24th February, 1783. The title is taken from the
Assignation Book.
Eleanor Pearson, administratrix of William Pearson, against
the ship called the Providence, whereof Charles Benison now is
or lately was master, and against John Hutton, owner of the said
ship, intervening, in a cause of bottomree ciyil and maritime.
Blade. Cooper.
Pearson borrowed £200 of Benison, and as a security mort-
gaged the ship Providence to him by giving a bottomry bond.
Drs. Scott and Compton, council for the defendant. The
present bond is to be considered merely as an hypothecation of
the ship ; and it being a chattel, it was the business of the mort-
gagee to give notice of his claim to the purchasers ; Atkins, 157
.... Clause in the agreement that if Benison sells the ship the
£200 is to be paid within two months, since the ship if sold
is not answerable by (sic) the purchaser. Bottomry bonds are
generally understood to be given on ships in a foreign port,
whereby masters in distress are enabled to obtain supplies, and
are enabled to hypothecate the ship by his instrument which is
binding on the owners. The present bond is merely personal
and was made within the body of the kingdom, viz., in Sunder-
land, therefore not of Admiralty jurisdiction.
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COURT OF DELEGATES. 331
Dr. WynnSy counsel for plaintiff. A bottomry bond made by 1783
the owner of a ship in England is exactly the same in effect as thb
by a master of a ship in a foreign port. It is a mortgage of a l*^^*^^^^
ship, a maritime contract, perfectly of Admiralty jurisdiction,,
and to all intents a bottomry bond. As long as the plaintiff
holds that bond, the ship is hypothecated to him. It was the
business of the purchaser to enquire into the right of sale. If .
the £200 was not paid as stipulated the sale was not good.
Court (1). — This contract is certainly a bottomry bond ; binds
and is attached to the ship wherever to be found. The proceedings
must be against the ship ; it is a special privilege granted by the
law maritime. Ordered the libel to be admitted.
THE AMITY'S DESIRE.
Priority of liens ; wages preferred to bottomry bond ; Ad, Ct. Assignation
Book.
23rd Feb., 1786. The Judge (Sir James Marriott)
pronounced in favour of the mariners and decreed their wages
and costs to be paid out of the money remaining in the Registry,
giving the usual security, and directed the remainder of the
money to be paid from out of the Registry to GostUng's parties
towards payment of the bottomry bond on giving the usual
security, &c. &c.
1786
FAYE V. GRAHAM. 1788
THE THREE RELATIONS AND THE BRITANNIA.
Collision. No damages or costs on either side ; Ad. Ct. Assignation Book,
26th March, 1788. No appeal.
Hans Faye, master of the Three BelcUions against the Britannia
and against Graham, &c., owners of the Britannia, intervening.
26th March, 1788. Sir James Marriott pronounced that " under
the circumstances of the case each party should stand by his own
damages and expenses."
[(1) Sir J. Marriott.]
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332 EECOEDS-'^HIGH COURT OF ADMIRALTY.
1780 WILDMAN V. BLAKES.
THE PETEBSFIELD AND THE JUDITH RANDOLPH.
Collision. Rule of division of loss applied where both ships in fault, the fault
of one being greater than that of the other; Ad. Ct. Assignation Book, 20th
May, 1789. No appeal
Wildman and others, owners of the Petersfidi and her cargo,
against the ship Jvdith Bandolph, and also against John Blakes
and others, assignees of the estate of Benjamin Eyre, a bankrapt,
sole owner of the Jvdith Bandolph,
Sir James Marriott pronounced that both ships were in fault,
and that the Judith Bandolph was most in fault, and decreed that
the whole of the damage sustained by the owners of the ship
Petersfield and her cargo, which was sunk and lost, as well as the
£230 damages and expenses given against the ship PetersfieU^
f and the costs of suit here on both sides, be borne equally by the
parties in this suit.
\ From a note of this case by Dr. NichoU (afterwards Sir J. Nicholl) amongst
the Admiralty Court papers at the Record Office, it appears that this suit was
iDi^tituted in December, 1786 ; that the owners of the Judith Randolph after-
^vards instituted an action at common law against the owners of the Petersfield
and obtained a verdict against them for £60 (or £65) and costs. The case
afterwards (18th April, 1788) came before the Admiralty Court for argument as
t(r the admission of an allegation by the defendants, the owners of the Judith
L'tmrloiph, of the verdict at common law. The allegation was admitted. Dr.
Nicholl was for the Judith Bandolph owners.
NELSON V. FAWCETT.
THE RESOLUTION AND THE LANGTON.
Collision. Rule of division of loss applied by Sir James Marriott, their being
no fault in either ship ; Ad. Ct. Assignation Book, 15th July, 1789. No appeal
Philip Nelson and others, owners of the ship or vessel called
the BesoltUion, whereof Wilfrid Leister was master, against the
ship Lwagton^ whereof Thomas Fawcett now is or lately was
mas^r, his tackle, apparel, and furniture, and against Thomas
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COURT OF DELEGATES. 333
Fawcett, part owner of the said ship, interveaing, in a cause of 1789
damage civil and maritime. Nelson
Eesddine prayed the Judge to pronounce that the Besolution YAwavrr
was sunk by the defatdt of master and crew of the LangtoUy and The Rbsolu-
to condemn Slade^s clients in damages and expenses. Langton.
Slade prayed the Judge to pronounce that Hesddine had failed
in proof of his libel, and to dismiss T. Fawcett, &c., his parties,
and their bail, from farther observance, &c., and to pronounce
that Slade had proved his allegation, and to condemn Nelson and
others, the owners of the Besolution — Eesddine' s parties — in the
damage done to the Liingtony and to condemn them in costs.
15th July, 1789. — Sir J. Marriott pronounced that " the loss
of the ship and cargo of the Besolution was not occasioned by the
default of the master and crew of either of the ships in question,
but was an inevitable accident, owing to the showring {sie) weather,
the darkness of the night, the small distance of the two ships,
and shortness of time in discovering each other, being close ; and
the Judge decreed that the damage on the loss of the ship JSeso-
lution and her cargo, as well as the damage done to the ship
Langton^ together with the costs of suit on both sides, be equally
borne by both parties."
There is a note of this oaso by Dr, Nichoil (afterwards Sir J. Nicholl, Judge
of the Admiralty Court), amongst the Admiralty Court papers at the Record
Office. It there appears tlat the action was entered for £3000, and that Sir
W, Scott was engaged in it. The rule that a ship on the port tack should keep
out of the way of another on the starboard tack, is meutioned by the Court as
having been " laid down by Lord Howe in America seven or eight years ago ;
not generally allowed as a rule." The Trinity Masters declined to n cognise it
as a rule of navigation ; they admitted it to be a rule that when two ships are
so close that they cannot otherwise keep clear, it is the duty of each to heave in
stays.
THE GRACE. 1796
Bottomry. Validity of bond not expressed to bind the ship (Sir J. NichoU's
Notes of Cases, amongst papers transmitted to the Record Office from the
Admiralty Registry).
29th June, 1796. — Sir W. Scott : Not of nature of bottomree
bond. Know, &c., Thos. Story, commander of Grace, bind my-
self, my heirs, executors, &c., to Denniston and McLachlan, &c. ;
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334 RECORDS— HIGH COURT OF ADMIRALTY.
1706 Whereas D. and McL. lent £226 to Story for use of victualler,
TuE GiiACET ^^^ t^ P*^y ter disbursements, &c., I have been content to accept
bond on the hull of the ship ; Now condition, &c., if obligors pay
&c., on arrival of ship at London, &c., then "obligation void.
Condition only fixes time of payment ; does not bind the ship.
Best all recital,— that had proposed to bind the ship, but have
not — are no words of obligation applying to the body of the
vessel. Whatever meaning not expressed.
Court (Sir James Marriott). — In condition only binds himself.
In recital mention binding hull of ship. Objection mere nullity ;
might be attended to in Court of Common Law ; this Court of
Equity ; meaning of bond clear.
The libel was therefore admitted. Upon the suit coining before the Court
ui)Ou the following Court day, it appeared that the bond had been paid : see
Ad. Ct. Ass. Book, 29th June; 22nd July, 1796.
I7fj8 REDPATH V. THE VROW MARIA.
Collision in Thames. Objection to admission of libel on the ground that
the collision was in the body of a county overruled, and libel admitted:
Sir J. NichoU's Notes of Cases amongst Admiralty Court papers at the Record
Office; Ad. Ct. Ass. Book, 3rd May, 1798.
3rd May, 1798. — Libel in case of collision. Objection stated ;
in Thames ; liable to prohibition ; . , . . T, R.
Dr. Lawrerice. — Court not stop till prohibited ; case of foreign
ship running foul of English ; can be no remedy but in Court of
Admiralty ; Court not give up jurisdiction till ... . settle, &c
Court. — Go on till prohibited. Admit.
mi THE JOHN.
Material-man allowed to intervene where proceeds of sale of ship are in the
Registry, though no original jurisdiction in such case. Sir J. NichoU's Notes
of Cases ; Ad. Ct. Ass. Book, 1st July, 8th July, 1801. No appeal.
Motion for money in Kegistry by material-man ; vessel pro-
ceeded against for wages, &c., and sold. These satisfied.
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CJOUBT OF DELEGATES. 335
Court {Sir W. Scott), — Allows material-men to intervene in I801
such case, and, the other demands being paid, to take money re- Thb John.
maining notwithstanding prohibition granted on original suit
THE NEPTUNE, Ley. igos
Bottomry. Whether bond expressed to be payable upon arrival at London is
payable though the ship, having put into Plymouth, is there condemned upon a
survey, and never reaches London ; Sir John NichoU's Notes of Cases.
19th July, 1803. — Bottomree bond at Lisbon payable three days
after safe arrival at London.
Shall be liable after next arrival at London, and at all times
hereafter.
If lost, burnt, or cast away, lender to bear loss.
Ship by stress of weather put into Plymouth, there surveyed,
and reported could not proceed to London.
Sait for money lent and premium as per bond, as far as ship,
cargo, and freight will go.
Sir J. NichoU : By general rule and particular contract ship, &c ,
liable as long as any part remains. 2. Emerigon. Bynkershoek,
Qu. Jur. Priv. 3, 16. 2. Marshall Insur. 2. MoUoy, 125.
Dr. Lawrence: Law of England different; Park Insurance,
421, &c.
Court (Sir W. Scott) : Whether relate to these foreign bonds
or (?) bottomree bonds commonly given in Newcastle voyages,
which quite different from these foreign bonds ?
(Dr. Laurrence) : Voyage specially stipulated ; must arrive in
London before debt can be due.
Dr. Swabey: Ship having got into Plymouth and unable to
proceed, loss has occurred ; risque which party took on himself.
Ship to make liable in E. I. voyages (?).
Court {Sir W. Scott) : Take time to look into books. If any cases,
wish to be favoured. Entered into in foreign country on necessity.
5tli August. — Remains of ships liable, and goods and freight
pro rata.
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336 KECOBDS— HIGH COURT OF ADMIBALTY.
1805 The Three Brothers.
Bottomree. Priority of liens. Sir J. Kicholls' Xotee of Goaee ; Recoid OfBoo ;
Ad. Gt. Ass. Book. Ko appeal.
30th April, 1805. — Dr. Stoabey^ for bottomry bond-holdor ; Sir J.
mchoUy for shipowner ; Dr, Bohinaon^ for master.
Suit by bolder of bottomry bond. Net proceeds of sbip sold in snit
£90. Ship in hands of purchaser with clanse Of indemnity ....
Bond given four years ago. £55 paid by master for wages.
Court (Sir W. Scott). — Case on very poor remnant remaining in
Ktgifltry of this vessel. Who entitled ? Three claimants : — (1) holder
i f Bond calling (?) Bottomree Bond ; (2) purchaser of vessel with-
out (?) notice of Bond ; (3) master who advanced wages. Of opinion
what master had hand fide advanced is entitled to be recouped. Wages
first lien preferable (?) to clear Bottomree Bond ; and master who
under necessity of paying wages and in habit of doing it .... no
other conld do it ; not alter case ; he has preference for this £55.
Eemainder about £35 ; purchaser without notice ; Bond given long
ago, highly material ; strictest Bottomree Bond should be inforoed in
first instance. Much mischief may arise from such lying by. Should
be proper activity ; not think has been here ; dated May, 1801 ; goes
to foreign countries ; sold without notice ; no intimation given any
way.
Under circumstances shall hold owner entitled to preference.
The note of this case in the Assignation Book is as follows :—
Name unknown, supposed to be called The Three Brothers of Halifax.
Our Sovereign Lord the King in His (Mce of Admiralty against the
said ship and goods, wares and merchandizes now or lately laden
therein found derelict and brought to Exeter.
Oosiling. Farguhar.
Anthony Crease, now of Falmouth, in the County of ComwaU (one
of the partners in the house of trade acting under the firm of Thomp-
son and Veitcb, of Alexandria, merchants, respectively British subjects),
the holders of a bottomree bond on behalf of his said house of trade
against the said ship and the freight due for the transportation of the
cargo in a cause of bottomree civil and maritime.
Sh^hard.
All Proctors alledged and prayed as in Act of Court, The Judge
having heard the said Act read and the Advocates and Proctors
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COUBT OP DELEGATES. 337
on all siJes, rejected Shephard^a Petition, admitted the claim for the jsos
ship, pronounced the same to have belonged as claimed, and after
paying the master and claimant of the said ship for his own use what
has hond fide been paid by him for wages, directed the remainder of
the proceeds remaining in the Registry after payment of salvage and
expenses pnr6uant to decree of the sixth day of March last to be paid
to the claimant for the use of himself and the rest of the owners and
proprietors thereof.
By the decree of tiie 6th of March a moiety of the value of the ship and cargo
was decreed to the salvors, the expenses on botli sides being first deducted.
The Lovely Ann.
Bottomry. In this case (17th March, 1815) Dr. LwihingUm objected to the
validity of the bottomry bond on the ground that amongst the items making up the
amount advanced was a premium of insurance by the bondholder ; that therefore no
risk was run by the lender ; and that the rate of interest, being 5 per cent, showed
that there was no maritime risk or premium.
The Court (Sir W. Scott; pronounced for the validity of the bond ; *^ Suppose
every man lending on bottomry insures; that nothing to this contract. What
difference to party whether take larger premium and insure, or take 5 per cent, and
charge premium of insurance on account ? " Sir J. Nicholls* Notes of Cases, Becord
Office ; Ad. Ct. Ass. Book, fol. 274. No appeal.
THE OBATAVA AND THE JANET. i839
Collision. Bule of division of loss applied by Dr. Lushington, both ships
being found to have been equally in fault ; Ad. Ct. Assignation Book, 11th
May, 1839.
Dr. Lushington pronounced " the collision in question to have
been equally the fault of the master and crew of the ship or vessel
Oratava, and the master part owners and crew of the brig or
vessel Janet ; and for a moiety only of the damage proceeded for
on each side^ and condenmed the (owners of the Oratava) and
bail given on their behalf to answer the action against the said
ship or vessel Oratava in a moiety of the damage sustained by the
Janet; and condemned the (owner of the Janet) and the bail
given on his behalf to answer the action against the said brig or
vessel Janet in a moiety of the damage sustained by the Oratava ;
with reference to Begistrar as to damages.
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338 RECOBDS-HIGH COURT OP ADMIRALTY.
iS2e THE TRIAL.
Bottomry. Liability of cargo put on board after execution of the bond ; Ad.
Ct. Ass. Bk., 18th Dec. 1826.
Messieurs Robert Humphrey Marten and Company of London,
merchants, the lawful attomies of Joshua Rentish of the Island
of Antigua, esquire, the lawful holder of a bottomree bond on the
said ship TnoZ, cargo, and freight,
AGAINST
the said ship, her tackle, apparel, and furniture, and the goods,
wares and merchandise now or late on board the same, together
with the freight due for the transportation thereof in a cause of
bottomree civil and maritime,
18th December, 1826.— The Judge (Lord Stowell) . • . . by
interlocutory decree pronounced for the validity of the bottomry
bond sued on in this cause as affecting the cargo, and that the
cargo of the said ship, whether put on board before or after the
date of the said bottomry bond, is liable to contribute rateably
towards satisfying the said bond, with interest and costs, in so far
as there shall be a deficiency after applying the proceeds of the
ship and freight in discharge thereof. The Judge moreover, at
the petition of Burchetty decreed monitions to issue against the
owners or consignees of such parts of the cargo, whereof accounts
of sales have not yet been brought in, and also against their bail,
calling on them to bring in such accounts of sales ; and moreover
decreed monitions to issue against the owners or consignees of
parts of the cargo whose freights remain unpaid, and their bail, and
also against the owners or consignees of such parts of the cargo on
which it is alleged freight has already been paid since the arrival
of the ship otherwise than into this Court, and admitted to have
been so paid after notice of the bottomry bond, and against their
bail, calling on them to bring in their freight monies, but directed
the question of liability against those persons who have paid
freight after the ship's arrival in London, and before or on the day
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COURT OP DELEGATES. 339
of the arrest, to stand over. The Judge also referred to the 1826
fiegistrar and Merchants to apportion the balance of the bond on
the different parts of the cargo.
THE LONDON MEECHANT. 1840
Collision. In this case, both ships being found to have been equally in fault,
the rule of division of loss was applied by Dr. Lushington, as in the case of
the Oratava, supra ; see Ad. Ct. Assignation Book, 28th May, 1840.
z 2
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LETTERS PATENT
TO
JUDGES OF THE ADMIMLTY COURT.
The following Letters Patent appointing Br. Gtxlolpbin Judge of the
Admiralty Court in 1658 is taken from the Delegates' Process in Page v. Ck>le,
1658.
The tenor of the Letters Patents granted to John Godolphin,
doctor of lawes, to bee one of the Judges of the High Court of
Admiralty of England, foUoweth, viz : —
Bichard, by the grace of God, Lord Protector of the Common-
wealth of England, Scotland, and Ireland, and the dominions and
territories thereunto belonging, to our trusty and well beloved
John Godolphin, Doctor of Law, greeting : Eeposeing confidence
and trust in your knowledge of the law ability care fidelity and
circumspection for the faithfuU discharge of the office and juris-
diction hereafter described. Wee have nominated constituted and
appointed and doe by these presents nominate constitute and
appoint you the said John Godolphin to bee one of the Judges of
our High Court of Admiralty of England, and doe grant and
commit unto you the said John Godolphin full power jurisdiction
and authority as one of the Judges of the said Court to take
cognizance of and duely to proceed in and heare and finally to
decree adjudge sentence and determine according to the lawes
statutes stile custom and usages of the said Court of Admiralty
all and all manner of causes and cases of what kind quality and
nature soever as well civill as criminall and mixt (?) and mari-
time cognizable in the said Court as lawfully belonging to the
jurisdiction and usages of the Admiralty or ordered ordained or
enacted by any law or ordinance or Act of Parliament to be heard
tryed proceeded in sentenced or adjudged in the said Court of
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LETTERS PATENT TO DR GODOLPHIN. 341
Admiralty or by the Judge or Judges of the same ; And with full
power as one of the Judges of the said Court to order proceed
upon correct punish heare sentence adjudge and determine
according to law and according to the statutes ordinances customs
and usages of the said Court all and all manner of offences con-
tempts trespasses and misdemeanours whatsoever, and all and all
manner of delinquents and offenders upon the high seas and salt
waters and all other places and precincts within or lawfully
belonging to the jurisdiction of the Admiralty of England ; And
we doe by these presents grant and commit unto you the said
John Godolphin full and plenary jurisdiction and authority as
one of the Judges of the said Court according to law and the
usages and custom of the said Court to hear and take cognizance
of and duely to proceed in tind upon all and all manner of causes
and cases of reprizalls, and also of and upon all manner of captures
seizures and arrests of the shipps and goods of all enemies and
rebells and pirats and sea rovers, and of and upon all shipps
spoyled or split or cast upon shoares (shoales ?) in or by means
of any storme tempest or casualty of the seas and goods of and
aboard such shipps, and all fioatson jetson and'lagon, and of and
against all persons seizing takeing witholding or detaining of any
such spoiled or split shipps or goods or floatson jetson or lagon
without due order from the said Court of Admiralty, and to
sentence adjudge and determine the same and every part thereof
according to the lawes customes and usages of the Admiralty and
not otherwise, and to set and impose such mulcts fines and
pecuniary sumes paines and amerciaments upon all and every
delinquents and offenders in the premisses or any part thereof, or
contemners of the decrees or orders of the Admiralty therein to
our use (?) as by the law and usage of the said Court hath been
accustomed, and as the quality and nature of their offences shall
deserve, with such powers of moderation and mitigation as hath
been used in the said Court, and the same fines mulcts amercia-
ments and pecuniary sumes duely to levy to by the pro-
cesse of execution of the said Court ; And we doe also by these
presents grant and commit to you the said John Godolphin full
and plenary jurisdiction power and authority as one of the Judges
of the said Court according to the lawes and usage and custom of
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342 LETTEBS PATENT
the said Court duely and legally to take cognizance of and
proceed npon and against all sbipps and vessels with their tackle
apparrell and furniture thereof in all cases which shall conceme
the repairing victualling and fumisheing provisions for the setting
of such shipps and vessells to sea and in all causes of bottomry
and likewise in all causes of contract made beyond the seas con-
cerning shipping or navigation or dammadges happening there-
upon or other dammadges ariseing at sea in any voyadge ; And
likewise in all causes of charterpartyes or contract for freight
bills of ladings marriners' wages^ or dammadges done by one shipp
or vessell to another or by anchors or want of laying of buoys, and
in and upon all goods laden or carried to bee laden aboard shipps
or vessells and also in and upon the possession and property of all
shipps boys lighters and vessels according to law and usage and
custom of the said Court of Admiralty ; and upon and of and in
all and every the matters causes and premisses aforesaid, as well
at the instance suit and promotion of partyes as otherwise accord-
ing to laws and as hath been used and accustomed in the said
Court of Admiralty and not otherwise ; and also in all other cases
and causes belongeing to the Court of Admiralty aforesaid as it
may bee requisite or expedient to proceed and take bailes and
recognizances as hath been used and observed in the said Court ;
And all and singular the said matters causes and premisses and
every part thereof with their and every of their emergencies,
incidents and dependents whatsoever to heare examine and
according to the lawes statutes ordinancies and customes and
usages of the said Court of Admiralty finally to end decree and
adjudge sentence and determine, and all and every the orders
decrees judgments and sentences of the said Court to execute and
award execution thereupon and cause the same to bee duely
levyed and executed and duely observed and obeyed according
to the usuall manner of executions of the said Court ; with full
power also to award and grant in due course and as hath been
usually donne all compulsory processes seizures and attachments
and arrests upon all or any persons shipps vessels or goods at the
instance suit or promotion of any person or persons or at the
suit or promotion of Our Advocate in all and every causes and
cases whatsoever aforesaid as by law or usage of the said Court
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TO DR GODOLPHIN. 343
hath bin accustomed ; and in all and every other causes and
cases by law warrantable and belongeing to the jurisdiction of the
said Court of Admiralty and as hath bin heretofore used in the
said Court and to summon in attach proceed agcdnst and in due
manner and accordeing to the said lawes and usages of the said
Court to correct and punish by imposeing of mulcts or fines and
causeing the same to bee leavyed to our use or by committing to
prison as the cases may in justice require all manner of violators
infringers or disturbers of the jurisdiction of the said Court of
Admiralty or contemners of the orders decrees judgments or
executions thereof; and also to minister all due oathes in all
causes and cases to partyes and witnesses according to law ; and
to award and issue commissions for examination of partys and
witnesses, and commissions of enquiry and of appraisement and
all other commissions awardable by law and according to the
style usages and customes of the said Court ; and to receive and
admit appeals in all causes and cases from all Yice-Admiraltyes
and other inferior Courts of Admiralty, and legally and in due
forme to heare and determine the same, and to grant inhibitions
and decrees of supersedeas and all other decrees and processes
anciently awardable and granteable by the said Court ; with full
power also and generally to doe and proceed heare and determine
in the said Court together with the other Judge or Judges of the
said Court and as one of the Judges of the said Court in all
manner of causes cases and businesses whatsoever pertayning to
the jurisdiction of the said High Court of Admiralty aforesaid
and belonging to and heretofore lawfully used in the said Court
in as full large and ample manner and forme as hath at any time
heretofore bin lawfully granted to or used by David Lewis doctor
of law. Sir Henry Marten knight doctor of law, and Bichard
Zouch doctor of law, late Judges of the said Court of Admiralty
respectively or any of them, or any other former Judge of the
said Court of Admiralty respectively or any of them or any other
former Judge of the said Court whatsoever, with all and all
manner of fulnes of power compulsory and coertion to execute
and put in and to compell obedience to the orders judg-
ments decrees and sentences of the said Court according to the
style and usage of the said Court and as was heretofore lawfully
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344 LETTEKS PATENT TO DB. GODOLPHIN.
used by the former Judges of the said Court ; To hould enjoy and
exercise the seyerall powers jurisdictions and authorities aforesaid
dureing our pleasure ; And further wee doe by these presents
grant unto you the said John Godolphin for your salary as one
of the Judges of the said Court the yearly sume of fiye hundred
pounds of lawfull money of England to be payed quarterly at
the receipt of our exchequer^ that is to say on the five and twen-
tieth day of December, the five and twentieth day of March, the
fewer and twentieth day of June, and the nine and twentieth day
of September, by even and equall portions, the first payment
thereof to bee made on the five and twentieth day of December
next ensueing the date of these presents. With all such rights
priviledges pre .... cies to you and the other Judge and Judges
of the said Court as anciently did belong to the Judge or Judges
of the said Court of Admiralty and were lawfully had and enjoyed
by the former Judges of the said Court in their times successively ;
Provided always that you the said John Godolphin shall not
your selfe alone without the presence assent and concurrence of
one or more of your fellow Judges of the said Court give or
promulge any sentence diffinitive or any final decree of restitu-
tion or other interloquutory having the force of a diffinitive in
any matter or cause or business whatsoever, but that in every
sentence or finall decree two or more of the Judges of the said
Court of Admiralty shall bee assenting and concurring ; alsoe to
all and every person and persons findeing or supposeing themselves
agreived by any judgment sentence or finall decree of the said
Court or such other interloquutory as by the law and style of the
said Court was and is appealeable, the right of appeal as was
heretofore used and accustomed; In witness whereof we have
caused these our Letters to be made Patent ; Witness ourselTe at
Westminster the eight and twentieth day of October in the yeare
of Our Lord one thousand six hundred and fifty-eight.
BeALE & WOLSLEY.
By the Lo. Protector.
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LETTERS PATENT
TO
SIR THOMAS SALUSBURY.
The following Letters Patent appointing Sir Thomas Salusbury Judge of the
Admiralty Court in 1752 is taken from a copy in the Record Office.
Letters Patent under the Great Seal of Great Britain granted
to the Right Worshipful Sir Thomas Salusbury, Knight and
Doctor of Laws, for the office of Judge of the High Court of
Admiralty of England, so long as he shall behave himself, with a
salary of £400 'pefr annum.
George the Second by the grace of God of Great Britain France
and Lreland King Defender of the Faith &o. To our trusty
and well-beloved Thomas Salusbury Knight Doctor of Laws
late Advocate General for the office of Lord High Admiral of
Great Britain, greeting: We confiding very much in your
learning honesty fidelity circumspection industry and dexterity
in the dispatch of business in this behalf and in consideration of
your good services to us in the defence and maintenance of the
right jurisdiction of the office of Lord High Admiral of Great
Britain aforesaid and of our High Court of Admiralty of Eng-
land, of our especial grace certain knowledge and mere motion
Do for ourselves our heirs and successors by these presents
ordain make and depute you the said Thomas Salusbury Knight
Doctor of Laws Official Principal and Commissary General and
Special in our said Court of Admiralty of England and Lieutenant
and Judge of the same with all and singular the powers autho-
rities and jurisdictions thereto belonging together with all and
singular the fees profits advantages and commodities whatsoever
and howsoever due and belonging to the said office according to
the ancient custom of our said High Court of Admiralty of Eng-
land without any account to be made or given to us, our heirs or
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346 LETTEBS PATENT
successors thereupon, with the salary of four hundred pounds to be
placed upon the ordinary estimate of our navy and to be paid you
yearly by the Treasurer of the Navy for the time being by equal
portions at the four most usual times of the year, videlicet, at
the feast of St. Michael the Archangel, the nativity of our Lord
Christ, the Annunciation of the Blessed Virgin Mary, and the
feast of St. John the Baptist, to be computed from the 29th day
of September last past being the feast of St. Michael the Arch-
angel; And we do hereby commit and grant to you Thomas
Salusbury Knight our power and authority to take cognizance
of hear determine and examine all causes civil and maritime,
also all contracts complaints offences or suspected offences
crimes pleas debts exchanges amounts policies of assurance
loading of ships and all other matters and contracts which relate
to freight due for the hire of ships transportation money or bot-
tomry, also to hear and determine suits transgressions injuries
extortions demands and matters civil and maritime whatsoever
between merchants or between owners and proprietors of ships
and other vessels whatsoever employed or used within the mari-
time jurisdiction of our Admiralty of England or between any
other persons whatsoever had made begun or contracted for any
thing matter cause or business or injury whatsoever done or to
be done as well in upon or by the sea or public streams or fresh
waters ports rivers creeks and places overflown whatsoever
within the ebbing and flowing of the sea and high water mark or
upon any of the shores or banks to them or either of them adja-
cent from any the first bridges towards the sea through England
and Ireland and the dominions thereof or elsewhere beyond the
seas together with all and singular the incidents emergencies
(sic) and dependancies wheresoever or howsoever such causes
complaints contracts and other the premisses or any of them may
happen to arise be contracted had or done; And moreover to
Jiear and determine causes of appeal and complaints of nullity
for the causes aforesaid or any of them from whatsoever Judge
Justices Vice- Admirals Marshals Bailiffs Constables or any other
our ofiScers and ministers whatsoever to our said High Court of
Admiralty of England interposed or to be interposed with all
and singular their emergencies dependancies annexed and con-
nexed causes and business whatsoever according to the laws civil
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TO SIB THOMAS SALUSBUBY. 347
and maritime and the customs of our High Court of Admiralty
of England, with fall power of inhibiting prohibiting supersed-
ing and causing to be superseded all and singular which shall
be needfdl in that behalf to inhibit supersede and prohibit that
they or either of them which the said causes of appeal or complaint
of nullity remain undetermined in our said High Court of Admi-
ralty do in no wise attempt to proceed further therein under the
penalty in that behalf to be limited at your discretion ; And also
complaints of all and singular contracts conventions causes ciyil
and maritime contracted or to be performed beyond the seas and
within England and Ireland or in any part of their dominions to
be fulfilled or performed howsoever happening; And also the
cognizance of all and singidar the matters which any way concern
or anciently hath belonged and doth belong to the office of the
Lord High Admiral of Great Britain and the jurisdiction of the
Admiralty of England aforesaid ; And generally to take cogni-
zance of and proceed in all and siugular other causes suits
crimes offences or suspected offences excesses injuries com-
plaints transgressions forestallings maritime businesses whatso-
ever howsoever done committed or perpetrated through the
kingdoms and places aforesaid within the maritime jurisdiction
of our Admiralty of England upon the sea or water or banks or
shores thereof ; Also with power and authority to take all manner
of recognizances for agreements or debts whatsoever and to put
the same in execution and to cause and command them to be
executed and also to arrest the cause and command to be arrested
according to the civil laws and the ancient customs of our High
Court of Admiralty aforesaid all ships persons things goods
wares and merchandizes for the premisses and every of them and
for other causes whatsoever concerning the same wherever they
shall be met with or found in the kingdoms or dominions aforesaid
within the liberties and franchises or without ; And likewise for
all other agreements causes contempts or offences whatsoever
howsoever contracted or arising, so that the goods or persons of
the debtors and offenders may be found within the aforesaid juris-
diction of our Admiralty of England; And to hear examine
discuss and finally determine the same with their emergencies
dependancies annexed and connexed causes and businesses
whatsoever according to the laws and customs aforesaid, and by
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348 LETTERS PATENT
aU other lawful ways and means according to your best knowledge
and ability to compell all manner of persons in that behalf as
the case shall require to appear and answer in our said High
Court of Admiralty of England, with power of using any temporal
coercion and inflicting any other penalty and mulct according to
the laws and customs aforesaid ; And to do and minister justice
and to proceed summarily without the strict formalities of law
considering only the truth of the feet and equity of the case
with all possible dispatch ; And also to enquire by the oaths of
lawful and men both within the liberties and franchises as with-
out of all and singular such things which by right statutes ordi-
nances and customs anciently were or ought to be inquired after ;
and to mulct correct punish chastise and reform and imprison
and cause and command to be imprisoned in any of our goals
being within our Kingdoms and Dominions aforesaid the parties
guilty and the contemners of the law and jurisdictions aforesaid,
yiolaters, usurpers, delinquents, and contumacious absentees,
masters of ships, mariners, rovers, fishermen, shipwrights, and
other workmen and artificers whomsoever exercising any kind of
maritime affairs as well according to the laws civil and maritime
and the ordinances and customs aforesaid and their demerits as
according to the statutes of our kingdom of Great Britain for the
Admiralty of England in that behalf made and provided ; And to
deliver and absolutely discharge and cause and command to be
forthwith discharged whatsoever persons imprisoned who are to
be delivered ; And to preserve and cause to be preserved the pub-
lick streams of our Admiralty aforesaid and the ports rivers fresh
waters and creeks whatsoever within the maritime jurisdiction of
our Admiralty aforesaid in what place soever they may be in these
the kingdoms and dominions aforesaid as well for the preservation
of our Boyal Navy and of the fleets and vessels of our kingdoms
and dominions aforesaid as of whatsoever fishes increasing in the
rivers and places aforesaid ; And also to keep and cause to be exe^
cuted and kept the statutes and ordinances whatsoever in that
behalf made and provided ; And to exercise expedite and execute
all and singular the things in the premisses and every of them
as by right and according to the laws statutes and ordinances
aforesaid ought to be done ; And moreover to reform netts too
streight and other unlawful engines and instruments whatsoever
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TO SIR THOMAS SALUSBURY. 349
by pablick streams ports rivers fresh waters or creeks whatso-
ever within the maritime jurisdiction of our Admiralty aforesaid
used or exercised by sea or water, and to punish and correct the
exercisers amd occupiers thereof according to the said statutes and
ordinances of our kingdom of Great Britain for the Admiralty of
England made and provided against the same ; And further to
take cognizance of and proceed in the aforesaid causes businesses
suits and complaints contempts offences crimes and extortions
civil and maritime and in all and singular other the premisses
together with all and singular the emergencies incidents annexed
and connexed causes and businesses whatsoever; And to give
promulge and interpose all manner of sentences and decrees in
that behalf whatsoever and to put the same in execution, with
cognizance and full jurisdiction of whatsoever other causes civil
and maritime which relate to the sea or which any manner of
ways respect or concern the sea or passage over the same or
.naval or maritime voyages or the maritime jurisdiction of our
Admiralty of England aforesaid upon the sea or in the ports
publick streams rivers fresh waters creeks and places overflown
as aforesaid wheresoever done or to be done, with power also to
proceed in the same according to the laws civil and maritime
and the customs of our High Court of Admiralty of England
anciently used as well of meer office mixt or promoted as at the
instance of any party as the cause shall require and seem more
expedient to you ; And likewise to take cognizance of and decide
of wreck of the sea great or small, and of the death drowning
and view of dead bodies of all persons whatsoever in the sea or
publick rivers ports fresh waters or creeks whatsoever within
Hie ebbing and flowing of the sea and high water mark through
our kingdoms and dominions aforesaid and the jurisdiction of
our Admiralty of England ; together with the custody and con-
servation of the statutes concerning wreck of the sea and the
office of coroner made in the third and fourth years of the reign
of Eing Edward the First, Also the statutes concerning goods
pillaged or taken away upon the sea within the kingdom of Eng-
land made in the twenty-seventh yeajc of the reign of King
Edward the Third, together with the cognizance of mayhem in
the aforesaid places within the flowing of the sea and high water
mark happening, with power of punishing all delinquents in that
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350 LETTERS PATENT TO SIR T. SALUSBURY.
behalf accordiog to the exigency of the law and the custom of
our Court of Admiralty of England in such cases ; with power by
these presents of deputing etnd surrogating in your place one oi
more deputy or deputies as often as you shall think fit, and such
substitute or substitutes at pleasure to revoke ; and of exercising
expediting and executing all and singular the premisses or any
of them by your aforesaid deputy ; To have hold occupy exercise
and enjoy freely and quietly by yourself or your sufficient deputy
or deputies surrogate or surrogates by you to be substituted as
aforesaid the office of Lieutenant Official Principal and Commis-
sary General and Special President and Judge of our High Court
of Admiralty of England, so long as you shall behave yourself
well in as ample manner and form as David Lewis Doctor of
Laws Julius Caesar Enight Doctor of Laws Daniel Dunne
Knight and Doctor of Laws Henry Marten Enight and Doctor
of Laws Bichard Zouch Doctor of Laws Thomas Hyde Doctor
of Laws John Exton Doctor of Laws Leoline Jenkins Enight
Doctor of Laws Eichard Lloyd Enight Doctor of Laws Thomas
Exton Enight Doctor of Laws Bichard Baines Enight and
Doctor of Laws Charles Hedges Enight and Doctor of Laws
Henry Newton Enight and Doctor of Laws Henry Penrice
Enight and Doctor of Laws or as any other Judge of the said
Court formerly held exercised occupied or enjoyed the said
office of Lieutenant Official Principal and Commissary General
and Special and President and Judge of the said Court, together
with the salary of four hundred pounds granted to you the said
Thomas Salusbury as aforesaid; Lastly we will and by these
presents for ourselves our heirs and successors do grant to yon
the said Thomas Salusbury Enight Doctor of Laws that these
our Letters Patent or the inrolment thereof shall be in and by
all things good firm valid sufficient and effectual in the law, any
defect imperfection omission cause matter or thing whatsoever
in any wise notwithstanding ; In witness whereof we have caused
these our Letters to be made Patent, Witness Ourself at West^
minster the nineteenth day of December in the twenty-fifth year
of our reign.
By the writ of Privy Seal,
Exd. Cocks.
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CASES AND OPINIONS.
The following cases and opinions (pp. 851-392), are selected from a large collec-
tion of ecclesiastical testamentary and admiralty cases contained in a MSB. folio
Tolome in Sir W. Burrell's handwriting.
Prize.
THE ELIZABETH GALLEY, Corneus Janse, Master.
Qu. Whether the value of ship and cargo is to be ascertained by the
net proceeds, or according to its cost valne at the time of the
capture ?
Dr$, Hay and BetawortKa opinions on the ease.
The Appeal in this case was heard before the Lords Oommissioners
of Appeals in Prize Cases, who made the following Decree : —
12th June, 1760. — Their Lordships reversed the sentence of the
Judge below, and pronounced the said ship and cargo to belong to
Peter van der Wallen and others, residing at Rotterdam, all subjects of
the States Oeneral, and decreed the same to be released from the
capture and seizure made in this behalf, and delivered, and restored,
or the full value thereof paid to the said Comelis Janse, the master,
for the use of the said owners and proprietor thereof.
In consequence of which the Decree of Bestitution has issued under
seal of the Gourt of Appeals, and has since been duly served upon the
persons who had become securitjs in the Ck)urt below for the captors
to restore the said ship and goods to the claimant, in case the sentence
should be reversed upon the Appeal.
The Dutch owners of the ship and goods have joined with the
captain, Comelis Janse, in giving Powers of Attorney to Mr. Eobert
Crommelin, of New York, to demand and receive from the captors
and their security^ the said ship and goods or the full value thereof,
and have sent therewith to him Certificates and Attestations of the
real and true value and cost of both ship and cargo, amounting to
£3375 sterling or thereabouts.
But the captors and their security insist that it appears by the
account of sales that the real proceeds of the ship and goods on which
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352 CASES AND OPINIONS.
were sold at New York by public auction did not amount to more than
£2770, and is but a trifle more than one half of the original coat of
this ship and goods, and that therefore they are not answerable for
any more.
What in a great measure occasions this difference is, that the most
part of the lading of this ship consisted of goods fit for Curacoa, where
the same were taken to have been delivered, and not for New York,
where it was sold ; many articles of which having sold at New York
for half the price it would have fetched at Curacoa.
The Lords of Appeal having, as it is hereabove stated, decreed the
ship and goods to be restored or the full value thereof to be paid by
the captors to the claimant, you will be pleased to give your opinion
thereupon, whether the full value of this ship and goods is to he
ascertained by the net proceeds of the sale at Now York, viz.,
£2563 11«. bd. of the currency, being £2770 sterling money? or
whether is not to be considered and ascertained according to the cost
and value of the ship and goods at the time of the capture, which
the claimant makes out to be £5375 sterling ? Or in case the captors
and their securities neglect or refuse to obey the Decree of Bestitution,
will it not be proper and advisable to return the said decree with
certificates and affidavits of the service thereof, and move the Lords
Commissioners of Appeals for attachments ? or what other st^ps do
you advise the claimant to take to inforce the said Decree and obtain
Bestitution in pursuance thereof?
Dr. Hay^ Hia MajesttfB Advocate, his opinion.
As it is stated that the ship and goods wore sold at public auction,
if there was no fraud in the sale, I think the claimants will be bound
by that valuation. If the captors have been guilty of embezzlemeuts,
or have collusively lessened the value, the claimants may lay their
case by affidavits before the Lords, who will grant attachments against
the captors.
The opinion of Dr. Betmoorthy Advocate to the Admiralty.
Dec. 12, 1761. J. Betsworth. — If there is no reason whatever to
suspect the least fraud in the transaction at New York, but the ship
and goods did there by fair sale at public auction, hondfide^ produce no
more than the sum of £5263 11«. 5d. of that currency, I am of opinion
that in such cases the captors and their securities will not be answer-
able for more than that sum, though the lading would have fetched a
price almost double had it arrived at Curacoa ; but if any fraud or
improper management was used, I think it would be advisable for the
claimants to lay proper affidavits before the Lords of Appeal to prove
such fraud, and to move their Lordships would be pleased to inforce
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CASES AND OPINIONS. 353
their Decree for RestitutioQ of the ship and goods or the full value
thereof by ordering attachments against the captors and their
securities.
Wreck.
Qu. — By a late Judgment wrecked goods are adjudged not to be
liable to payment of duty, and it frequently happening that goods
are cast on shore in the Boyalties of Lords of Manours, or within the
joriadiction of the Vice-Admirals, How, in this case, are the officers
of the Customs to behave themselves ? Whether are they to detain
the wrecked goods a year and a day, or to put them in the hands of
the Lords of Manours, &c., to be kept by them so long as the law
requires ?
Answers. — By the Statute 3 Edw. 1, c. 4, it is declared where any
living creature escapes alive out of the ship that is wrecked, such
ship or the goods in it shaU not be adjudged wreck, but the goods
shall be kept by the care of the sheriff, coroner, or the King's bailiff,
and delivered into the hands of such as are of the town where the
goods shall be found, so that if any sue for those goods, and after,
within a year and a day, prove that they were his, or perished in his
keeping, they shall be restored to him without delay ; if not, they
shall remain to the King, or to such subject who hath title to wrecks.
By 4 Edw. 1, De officio coronatoris, it is enacted in case any going out
of, or coming to the realm, by tempest or other misfortune, break on
the bea banks, and the goods come to land, which may not be said
wreck, they shall presently be delivered without fraud to the mer-
chants to whom the goods belong, or to their servants, proving them
to be his own by his marks, or by his cast or cocket. By the last
statute no goods are wreck but where no property can appear in any
person ; for although no living creature be saved out of a ship wrecked,
according as is mentioned in the first statute, yet if the owner's
property can be made out by marks, cart, cocket, letter, or otherwise,
the owner shall have his goods, paying what is reasonable for salvage ;
and he hath a year and a day given by the first statute to prove his
property. Therefore the Lord of a Manour hath no right to seize any
wrecked goods till that time be expired, but they are to be preserved
as directed by the two former laws, and they are to be placed so that
the town where they shall be found shall be charged with them
daring that time ; and in regard if any owner of the goods can make
out his property to the goods, he will be liable to pay the King his
custom, if he don't export them again (as he may) but sells them here.
I think the officers of the Customs may take care, by keeping the
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goods with consent of the towns that wonld be answerable for them,
or by delivering them to the towns to be secured, and if any owner of
them can be made out within the year and a day, the King shall have
his customs, and the Lord of the Manour claiming wreck hath no
right to take the goods from them till after the year and a day, by the
express provision of the Statute 3 Edw. 1.
Edwd. Northey, Feb. 13, 1701.
Wages.
Qu. — Is a sailor hired to serve on board the ship A, and serving on
board B, a tender to the said ship, by the captain's orders,
entitled to arrest the ship A for his wages?
A. B., commander and sole owner of the merchant ship the Suffolk^
takes on board the said ship 0. E. as a common sailor, who served
bome little time on board a tender, which attended the said ship, and
there continued doing his duty as a common sailor for some consider-
able time ; which tender is called the Providence^ sloop.
Question, — Whether the aforesaid tender is part of the tackle,
apparel, and famiture of the aforesaid ship ; and whether it is advis-
able to arrest either the master of the ship Suffolk^ or both, for his
wages due for duty on board the tender and Suffolk f
Answer, — I am of opinion that the tender is part of and belongs to
the aforesaid ship, the Suffolk, and as he was sent there by order of
the commander he was doing his duty when he was on board the
tender, as if on board the Suffolk^ and that he may arrest the ship
Suffolk in a cause of substraction of wages and recover the same.
Seizure.
Concerning the seizure of a merchant ship under pretence of the
master being a foreigner, when in ^etct it was the purser.
[A Bristol ship was seized in Barbados and libelled in Admiralty under the Acts
of 2 Car. IL, 15 Car. II., and 7 & 8 Will. III., as being forfeited for having an alien
niftBter. The opinion of Dr. Henchman, dated 17th July, 1725, is to the effect that
the seizure could not be justified ; that the person alleged to be master was not in
fact the master ; that if he were master, and an alien by birth, yet having senred for
two years on board H. M. ships, under 6 Anne, c. 87, s. 20, he had obtained the
privilf ges of a natural bom British subject ; and in answer to the question whether
an Inhibition could be obtained upon the Libel and answers, the Doctor says :~]
I am of opinion that it is too soon to move for an inhihition, for the
Superior Court never supposes that the Court, which has a proper
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CASES AND OPINIONS. 355
oc^nizanoe of the cause, will act otherwise than the law directs, and
therefore no inhibition is ever granted, till there is some decree made,
or sentence given, or act done which is prejudicial to some of the
parties, which, as yet, there is no appearance of.
Hum. Henchman, Drs*. Comm. July 17, 1725.
Wages.
A ship went out upon a voyage from London to Cadiz and back
again to London. At Cadiz the ship was detained two months and
a half by order of the King of Spain. The mariners, contintdng on
board all the time, had their provisions, but had nothing to do on
board but look after the ship. The ship is returned to London with
her mariners, who have been aboard all the voyage.
Qu. — Will the mariners be entitled to wages for these three months
and a half the ship was detained by the Rin^ of Spain ?
Answer, — I am of opinion that the mariners in the Court of Admi-
ralty will be allowed £2 wages during the detention of the ship.
J. Andrew, Drs'. Comm. Aug. 12, 1727.
Prize.
Qu. — ^Is the ship A taken within the limits of Havre de Grace, and,
if so, is it not an ill^al capture ?
The ship the Two Sisters, Captain Qeo. Bursell« Commander, belong-
ing to Dartmouth, went to Holland, from thence to Norway, and
then took a cargo for Havre de Grace in the Eangdom of France,
firom whence she was to come to England. She accordingly sailed
from Norway to France, and came to an anchor off Havre de Grace,
within a mile of the French coast, and as she was weighing anchor,
Aug. 22, 1740, was taken by a Spanish Privateer and carried into the
port of Havre de Grace, where he detains her as lawfull Prize.
(Please to see the Captain's Protest.)
Query. — Do not you apprehend that the said ship is an ill^al Prize
on account of her being taken so near the French coast, and is not
such a capture contrary to the maritime laws, and the laws of nations,
and the treaties subsisting between the Crowns of Great Brittain and
France?
Answer. — By the laws of nations the Princes and States noways
engaged in the present war ought to preserve the neutrality of their
several ports and harbours. To that end care mu^t be taken that no
prize should be attacked, seized, or taken ^thin the harbours of
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356 CASES Al^ OPINIONS.
Princes and States in amify with the King of Grea^ Brittain or the
Spauitsh Kiog, or within shot of their oannon. If any ship be ta^en
within the limits of a port or harbour, it is a violation of the neutrality
of the place, and upon complaint and proper proofs the party grieved
ought to have restitution by the authority of the Pi-inoe or State where
such violence was committed. If this ship was taken out of the
harbour and road of Havre de Grace, and beyond the reach of the
planted cannon, I apprehend, by the maritime law she may be
adjudged to be prize, though but a mile from the French coast. The
best mode for determining this point will be by settling the limits of
the port, harbour, and roa(^, and the extents and place where tliis ship
was taken ; and if it shall a])pear to be within the chambers or limits
of the harbour, the ship ought to be restored. If not, I fear she will
become a prize.
G. Paul, Drs'. Commons, Sept. 4, 1740,
Prize.
Qu. — Whether goods or manufactures, the produce of the enemy's
country, purchased bond fide by neutrals, can be seized on
board neutral vessels and condemned as prize.
The Spanish men-of-war and privateers have, since the war between
England and Spain, and do constantly stop and search neutral shipf(,
upon suspicion of their having on board goods which were English
manufactures, or the product of England ; and when such goods have
been thus found, they have taken them out and condemned them as
good and lawfull prize, although the same were not the property of
British subjects.
Query. — Whether an English privateer can, by virtue of a letter of
marque, and without any violation of the law of nations, or contrary
to treaties, stop any neutral vessels which he suspects of having on
board goods which are Spanish manufactures, or the product of Spain,
or the dominions of the King of Spain, whether the same be the pro-
perty of Spanish subjects or not, and whether in such case the same
will or can be adjudged and condemned in the Court of Admiralty of
JJngland?
Armoer, — A private man-of-war, or privateer by virtue of his com-
mission, has a power to take, seize, bum, or destroy the ships, goods,
and effects of the King of Spain, his subjects and vassals, "wherever
they can be found, except in a neutral port, or within the harbour
and within the reach of the cannon of Princes and States in amity
with his Majesty, and also except goods and merchandize on board
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CASES AND OPINIONS. 357
Frencb eliips. By the Treaty of XJtreobt it k stipulated (1) ** That
it shall be lawfull for all and singular the subjects of Great Brittain,
and of the most Christian King to Pail with their ships, with all
manner of liberty and security, no distinction being made who are the
proprietors of the merchandize laden thereon." The like priviledge is
claimed by the subjects of Portugal under a treaty made in 1634, but
not so strong as that in favor of France.
A privateer may lawfully demand the stopping of a neutral skip,
where it is probable that there are Spanish eflfects, and if any such are
found on board they may be seizefl, and upon proper proceedings, will
be condemned as good and lawfull prize. If the goods seized are the
manufaoturee of Spain, or the product of Spain only, that will not
justify the seizure, in case the owners of a neutral ship sh^U prove
that they regularly purchased such manufactures, wine, fruit, or other
goods on their own account. But if they remain the property of
Spaniards, and the neutral ships are only carriers, in such case they
are liable to condemnation*
G, Paul, Doctors' Commons, Dec. 8, 1740.
Prize.
Qu. — Are the insureiB liable to pay the ransom due for a Ransom Bill
retaken ?
Th© ship ^i^foheth, Charles Steward, master, bound from New York
to Liverpool, was taken by a French privateer belonging to Dunkirk,
27tb September last, and on the 29th the master ransomed the sloop
and cargo for £600 sterling, and went himself hostage for the pay-
ment of the said ransom. His mate took upon him the command of
the ship and carried her safe into Liverpool.
The French Privateer, returning to the port of Dunkirk with the
Ransom Bill and the hostage on board, was taken by His Majesty's
ship Weaale and brought into the Downes, by which good luck the
said hostage regained his liberty ; and the commander of the sloop of
war having by capture of the French privateer got possession of the
said Ransom Bill for £500 sterling, regularly condemned the same in
the Court of Admiralty, and recovered one-eighth for salvage, with
the usual expenses condemning the s^ine. The greatest part of the
lading of the said ship was the property of the owners, and insurance
both on ship and cargo made by them without any special clause to
make the insurers liable to the payment of a Ransom, in case the ship
[(1) Article 8, also 17, of the Treaty of Commerce at Utrecht, 1713 ; vide Colleo-
tion of Treaties, vol. iii., p. 410.]
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358 CASES AND OPINIONS.
should not arrive at her intended port afrer ransoming, bnt be lost
by any accident before she was got there. The remainder of the
cargo of the said ship was the property of sundry persons who freighted
the same.
lat Query, — Whether the insurers (as they would not have been
liable to pay the said Eansom Bill for £500, had the ship been lost
after ransoming, and the whole ship and cargo wa8 ransomed at the
master's risque) are not liable to pay a salvage, notwithstanding the
ship and cargo got safe into port under the circumstances above
mentioned ?
1st Answer, — The master's ransoming the ship and cargo, though at
bis own risque, was on the account and for the benefit of all who were
interested therein. By the ransom the ship was secured from a total
loss as prize to the enemy ; and if the Kansom Bill was not discharged
by the recapture, but a salvage was due to the recaptors, it was in
lieu of the ship, and the loss ought not to be borne by the insurers, in
the same manner as if the ship itself had been taken and had con-
tinued in the possession of the enemy until retaken, this being a loss
occasioned by the enemy, as I conceive, within the words of the policy
of insurance.
2nd Query. — ^Whether the freighters of the goods on board are not
liable to pay a salvage proportionable to the value thereof, as they
were not by any contract or otherwise obligated to bear a proportion
of the said £500 sterling, or relieving the ransomer had the ship been
lost after her ransoming ?
2nd Answer, — The freighters are, I conceive, liable to pay salvage
upon an average, the ransom having been for their benefit and whereby
the whole was preserved ; and the same reason will govern in their
cafe as in regHrd to the insurers.
Srd Query. — AVhether the owner, notwithstanding his receiving the
►hip and cargo into his possession, has not a right to recover from the
insurers what damage he sustained in the ship, delay of time, and loss
of markets in consequence of such capture ?
Srd Answer, — The insurers will not, I think, be answerable for ony
damage the owners may have sustained by the delay and loss of
markets occasioned by the enemy. If she heA been chased only and
drove out of her course and escaped, it would have had the same
effect, yet the insurers would not have been liable for the damage.
The law distinguishes between lucrum cessans and damnum emergens.
What actual damage the owners should sustain from the enemy was
to be made good by the insurers, but not the profit which he might
otherwise have made.
Mh Query. — Whether after the ship being in the enemy's possession
above forty-eight hours, and in a storm, and due protest made to the
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CASES AND OPlNIONa 359
master and mate upon oath that the ship has sustained such damage
thereby, if the owner of the ship is obliged to make good any damage
the cargo has sustained ?
4ih Answer — The owner is not obliged to make good any damage
the cargo has sustained, it arising from the enemy, and not from any
defect in the ship, or default in the master or company.
J. Andrew, Drs'. Comm. Aug. 20, 1746.
Prize.
Qu. — ^How the produce of a Prize is to be distributed between two
privateers ; whether according to the number of men and weight
of metal or quantity of tonnage?
A, B, C are appointed arbitrators to determine the proportion of the
following burthens and strength concerning the distribution of a Prize
of £3000 value, viz. :—
First, a privateer of 400 tons, 295 pounds of metal, 1 91 men.
Second, a privateer of 280 tons, 134 pounds of metal, 181 men.
N.B. — ^As the pounds of shot are not disputed, we will dear oui*
meaning by supposing that the first privateer had —
24 carriage guns, 9 pounders; 24 by 9 is 21 G
7 swivels of 1 pound . . . „ 7
13 brass paterarses, 3^ . . • >» (>3
6 iron do. Ij^ . . „ 9
296
Second privateer, 18 carriage guns, 6 pounders 108
„ 6 do. 4 do. 20
y, 6 swivels 1 do. 6
134
The facts being agreed as above, the question is how the sum of
£3000 is to be distributed between the two privateers ? It is argued
by one c^r more of the arbitrators that it is the number of men and
weight of metal that ought to determine the proportion that each
privateer ought to have, because this is real strength, forasmuch as a
privateer of a smaller burthen may be made of much more strength
by a superiority of metal and number of men than one of a greater
tonnage. The opinion of another is that the burthen of the ship
ought to have its weight in this dibtribution, because it happens that
ships will strike at the appearance of a superior force, always sup-
posing that a privateer is iitted in proportion to her burthen with
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360 CASES AND OPINIONS.
gnus, men, &c. Another opinion seems likewise to prevail, which is,
that as the smallest privateer had more men in proportion than the
privateer of 400 tons, she ought to be a gainer on this account, though
a loser on the two others arising from the difference in the burthen
and weight of metal.
Answer, — Great difi&culties will attend all distributions of prizes
amongst privateers, if tonnage, weight of metal, and number of men
are all three to be considered in order to determine what proportion
shall be allotted to each privateer. The plainest, clearest, and best
rule, I think, is to determine the proportions according to their
respective number of men only, without consideration of tonnage or
weight of metal. This method I take to be most agreeable to the
Act of Parliament, to the usage of the Eoyall Navy, and to the practice
of the Court of Admiralty. q^o. Lee, Sept 12, 1747.
Prize.
Qu. — Whether Count Desneval, a Frenchman, accepting the commis-
sion of a Vice- Admiral from an enemy (though with no view to
make war, but merely honoris gratia) can be taken by us in a
neutral port ; and whether buch capture is l^al, the neutral
power not interfering, or making a complaint of a breach of
neutrality ?
On behalf of Peter Joseph Le Roux, Count De^jneval.
Count Desneval is a French nobleman residing in the Kingdom of
France, and a subject of that Crown, but who went into the service
of the King of Denmark in 1721, in which he continued from that
time till 1739 as Rear Admiral of the Navy of Denmark. In 1739
Count Desneval (who had for many years before been considering
and projecting a proper scheme fur the effectual discovery of the
Empire of -Ethiopia, and for enabling the trading nations of Europe
to carry on with the inhabitants of that country a very extensive and
beneficial trade) obtained leave from the King of Denmark to go upon
this entei-piise. And as the Court of Spain had formerly been in
correspondence and friendship with that of ^Ethiopia, the Count
thought that through the means and under the protection of the
Spanish Court he should fecilitate this introduction into the Court of
-Ethiopia, and therefore repaired into Spain with his Countess, who
were both introduced to their Catholic Majestys, by whom they were
well received, and who promised them their protection.
The King of Spain accordingly made the Count a Vice-Admiral of
the Spanish Navy, and granted him a commission accordingly, with
full power to make use of Spanish colours upon any ships he shonld
take with him, and granting to him, his officei^s, soldiers, and crew, all
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CASES AND OPINIONS. 861
the privileges enjoyed by the natives of the Spanish dominions. The
Connt thereupon bought two ships at Malaga, which he afterwards
bent to Cadiz, where they were to be fitted out, manned, and fur-
nished with proper dispatches ; but in their passage from Malaga to
Cadiz one of them was lost. On the 2nd May, 1744, the Count
having prepared everything necessary for a voyage of this import-
ance, repaired with his iady and attendance on board the ship
L* Amiable Marie, Notre Dame de Victaire, and sailed from Cadiz on his
then intended voyage and discovery ; but he was not provided with
any commission from the King of Spain, either for war or trade, as
neither of these were the designs he went upon, and only upon a
scheme of making such great discoveries as would be of infinite
service to all trading nations in general.
Some time after the Count sailed from Cadiz, he met with some
British ships of war, who attacked him, but he got clear of them and
then proceeded to a Portugese port called Praya, being one of the Cape
de Yerd Islands belonging to and being in the actual possession of the
King of Portugal.
The Count Desneval continued for several days in his said ship at
an anchor within the said port of Praya, and under the protectitiU of
a fort there, and whilst he was there at anchor, 2nd of June, 1744, a
squadron of English ships of war under the command of Commodore
Bamet appeared, and sailed into the port of Praya under English
colours, and thereupon the Coant hoisted his Spanish colours, and the
port and two Portugese ships, which were in port, hoisted Portugese
colours. Commodore Bamet thereupon sent a compl iment to the Count,
who returned it to him with an o£fer of his boats and barges to assist
him, or anything else he had on board that might be of service to him.
The Count finding himself in a Portugese port, and under the
cannon and colours of a Portugese fort, and so under the actual pro-
tection of the King of Portugal, thought himself thereby, and he did
by the King's instructions to the commanders of British ships of war,
and by the law of nations, entirely secure from any attack or hostility
from the ctjmmodoi-e, especially as he, (the Count) was in a ship not
fitted for war or trade, but only for discoverys, which if made would
be of very great service to the British nation in particular.
Notwithstanding, on the 6th of June, 1744, Commodore Bamet
with the ships under his command attacked, and seized in the said port
of Praya, the said ship L* Amiable Marie, Notre Dame de Victoire, then
at anchor within the said port and all the goods and effects therein,
and without proceeding to any condemnation sold the whole to some
Portugese at Praya.
Count Desneval apprehends that this capture is in all respects un-
just, for that by the King's iustructions of the 30th of November, 1739,
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362 CASES AND OPINIONS.
Article 1, it is expressly declared that no hostility shall be oomndtted,
nor prize attacke^l, seized, or taken within the harbours of Prinoes
and States in amity with the Crown of Great Bi ittain, or in their rivers
or roads, within shot of th ir cannon, and he submits whether besides
this capture is not to be deemed a breach of the law of nations ?
Query. — Your opinion is therefore desired whether upon all, or some,
and which of these accounts, this capture- is not to be considered as
unjust and illegal ; and whether restitution should not be made, with
costs and damages to Count Desneval, and whether Count Desneval
may not claim under the privileges of a Portugese port, and the
benefit of His Majesty's instructions, and the law of nations ? And as
Commodore Bamet is since dead, you are desired to advise what steps
you think most proper for Count Desneval to take in order to obtain
full satisfaction for the injury he complains of?
Answer, — As Count Desneval had a commission appointing him
Yice-Admiral from the King of Spain, and was thereby in the service
and under the protection of that Prince, and sailed under Spanish
colours, I am of opinion he is by law to be deemed a Spaniard, and
his ship Spanish property, and as such were lawfall prize to the
British Commodore. His Majesty's instructions were given with re-
gard to and in favour of his friends and allies; and Count Desneval,
who, I think, at the time of the capture may be esteemed an enemy,
cannot take advantage thereof, or claim any privileges ^m the
Portugese port, since his Poriugese Majesty has not thought proper to
oompUdn of any indignity done to him, or of any breach of the laws
of nations by this capture being made in his port Upon the whole I
am of opinion the capture as to Count Desneval was lawfuU, and that
he cannot obtain restitution. But if he is desirous to have the judg-
ment of the Court of Admiralty thereon, he must take out a monition
against the agents of the prize, if there are any appointed, or against
the captain of the man-of-war, who actually seized his ship and goods,
and if he be living, or in case he is dead, against his representatives
t» pri>ceed to condemnation, and must enter his claim.
George Lee, May 18, 1749.
Prize.
For the captors of the ship St, George,
Qu. — Can the former owners of a ship, after her being condemned
as prize, sold, and distributed amongst the captors, without
their having lodged an appeal within the time limited by law,
or claimed it before beginning their action, oluim restitution,
paying salvage ?
In 1748 the ship St. George was taken from the enemy by the Advice^
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CASES AND OPINIONS. 363
man-of-war, Captain Haddock, commander, and bronglit into Ireland,
where she was condemned to the captors as lawfnll prize, no claim
^^"g given in ; in consequence of which condemnation she was sold,
and the produce thereof distributed by the agent* amongst the captors.
She happens now to be at Corke, in the possession (as it is supposed
by the two annexed letters) of the purchasers ; but she has lately
been arrested there by a warrant from the Admiralty of Dublin, at the
suit of some merchants of Liverpool, who assert themselves to be the
former owners thereof, who claim restitution of her, paying salvage,
as being a recapture by a man-of-war.
Query, — The captors desire, therefore, to know whether as this ship
was not claimed before condemnation, and no appeal has been lodged
within the time limited by law, and the ship ha\ ing been long since
legally condemned, sold, or distributed amongst the captors, the
former English owners can now begin their action and make their
claim in the Court of Vice- Admiralty in Ireland, where the ship was
condemned ? Or whether an appeal will now lay from the said sentence
of condemnation to the Lords Commissioners of Appeals, and against
whom ? And what steps ought the captors or the purchasers of this
fehip to take, in order to release this ship from the present arrest, and
to oppose, if proper, the claim and pretentions of the former English
owners?
Answer. — ^In cases of recaptures the Act of Parliament has given to
the recaptors only salvage, and has revested the property of the ship
and cargo in the former owners, and therefore I think the former
owners may at any time, notwithstanding a condemnation, sale, and
distribution, reclaim their former property or the value thereof, paying
salvage. Bat since there has been in this case a sentence of condem-
nation of the whole as prize, that sentence is binding and conclusive
upon everybody till it is reversed upon an appeal, which appeal I
conceive the Lords will admit, provided it shall appear that the
owners have lately, since the distribution, come to the knowledge of
the condemnation, and more especially if it appears from the prepara-
tory examinations or ship's papers that the St. George was a recapture ;
for in that case the recaptors will, notwithstanding the sentence,
which is evidently erroneous, be in mala fide in taking and distributing
more than was their due ; and the Court should in that case have
decreed the ship and cargo to have been appraised and sold, and the
money to have been brought into Court, and should have ordered one
eighth only to have been paid to the recaptors, and the rest of the
money to have remained in the registry for the benefit of those who
should prove a title thereto. If the owners appeal, they must proceed
against the recaptors^ who were the originnl parties that prayed the
sentence of condemnation. But the present arrest of the ship and
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364 CASES AND OPINIONS.
proceedings in the Court in Ireland are in my opinion unwarrantable
and illegal, for no Court can act contrary to the sentence of condem-
nation, till it is reversed by a superior judicature ; and therefore I
would advise the purchasers, who I take for. granted are the parties
in the present cause, or whoever are so, to allege that the ship has
been condemned as lawfull prize ; that no appeal &om that sentence
has been interposed, but that the same stands in fiill force ; that they
have by virtue of the said sentence lawfully purchased the ship, and
pray that the arrest may be discharged, and they dismissed with costs.
If the Judge should reject their petition, they must appeal from his
order, which will upon that point be a final Interlocutory Decree, to
the Judge of the Admiralty Court in England, to whom the appeal
lies in the present cause upon the arrest.
George Lee, July 1, 1749.
Prize.
In regard to Admiral Knowles* share of the Prizes taken by Capt.
Andrews in his course from the Jamaica station, where Mr. Enowles
commanded, to the Louisbourgh station, to which he sailed by Mr.
K.'s orders.
Admiral Knowles was first made Governor of Louisbourgh, and
commander-in-chief of His Majesty's ships on the coast of North
America. Afterwards he was appointed commander-in-chief of His
Majesty's ships employed at Jamaica, a new Governor appointed at
Louisbourgh and another Admiral to command on the coast of North
America. Soon after Admiral Knowles* arrival at Jamaica he ordered
Capt. Thos. Andrews of His Majesty's ship Worcester, who was
stationed there, to sail under the annexed orders for Louisbourgh.
Before Capt. Andrews sailed from Jamaica, Admiral Knowles told
him that, in order to avoid all disputes about sharing of Prize money,
he was to take notice that if there was no commanding ofiBcer appointed
at Louisbourgh, and he should happen to take anything in his passage
there, he in that case expected a share ; but if there was a commanding
ofiBcer appointed for that station he should then expect a shai-e of
nothing but what was taken to the southward of Crooked Island,
which he reckoned the limits of his command as commander-in-chief
of His Majesty's ships employed at Jamaica* Capt. Andrews, in his
passage to Louisbourgh, took the following prizes : the Providence^ on
the 13th May, 1748, Latitude 30° 9' N. per account; the Cape
Adventurer, 18th May, 1748, 30° 20' N. per account; the Alexander,
24th May, 1748, 36° 47' N., per observation.
N.B. — These prizes were taken a great way ^ to the northward of
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CASES AND OPINIONS. 365
Crooked Island, whioh is in the Latitude of 22^ 39' ; and Admiral
Watson was appointed to command on the coast of North America
long before the prizes were taken, bnt did not sail from England till
some time afterwards.
Query, — ^As another Governor was appointed at Lonisbonrgh, and
Mr. Watson was appointed commander-in-chief of His Majesty's ships
and vessels employed at Jamaica, which you will please to observe he
styles himself in his orders, will Admiral Knowles, as this case is
circumstanced, be entitled to a share of these Prizes, and Capt.
Andrews be considered as under his command when these Prizes were
taken or not ?
Answer. — As Capt. Andrews sailed under the orders of Admiral
Knowles, by virtue and in consequence of which he was enabled to
take the Prizes above mentioned, and as there was at that time no
flag officer commanding on the coast of North America (for the case
states that Admiral Watson had not then left England), I am of
opinion that he is to be considered as under the command of Admiral
Knowles, and that the Admiral is entitled to a Flag share of all the
prizes Capt. Andrews took in his passage from Jamaica to his new
station at Louisbonrgh, notwithstanding ihey were taken out of the
limits of the Jamaica station. I think the appointment of a new
Governor at Louisbonrgh (who being a land officer had no command
at sea) is not material in the consideration of this question.
Gbo. Leb, May 12th, 1751.
Correction.
On behalf of the office of Admiralty.
For opposing and preventing a man-of-war's boat coming on board to
press their hands; and in what manner they should be proceeded
against for such contempt.
4th June, 1755. — Francis William Drake, Esquire, commander of
His Majesty's ship WincheUea^ being in or near the port of Liverpool,
having orders from the Lords of the Admiralty to impress seamen for
manning His Majesty's fleet, and observing an English merchant ship
which was then coming into the said harbour, which afterwards
proved to be the Uptouy of Liverpool, Thos. Birch, master, ordered
John Watson, the master of the Winchelsed'a company, to take the
barge, and go on board the said vessel, and impress the seamen, which
they accordingly attempted to do.
But when the Winchelsea'a barge came up with the Upton^ all her
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366 CASES AND OPINIONa
hands having, as it is pretended, confined the captain and taken up
arms, as mnskets and cutlasses, and loaded their great guns, they
made a stout resistanc", declaring they would die before they would
be taken; and then taking to thtir boat they left their ship and
rowed towards the shore, in order to escape being pressed ; and on
the Winchelsed'M barge following them, they fired several shots at her,
wounded the master of the WineheUea in <»ne of his eyes, whereby he
lost the sight thereof, shot one of the men in the barge in the right
cheek, which passed quite through on the left side of his head, and
wounded several of the WineheUea' 8 men.
llie Winchelsea't people, however, got the upper hand of the CFpUm^M
crew, who thereupon getting upon the off-side of their boat, she
overset so far as to fill, and the Upton's people, being in the sea and
crying out for quarter, the Winchelsea'a men on board of the barge gave
them all the assistance they could, and took them up, to the number
of fifteen, and carried them on board the WineheUea,
The circumstances of the case are now fully and particularly set
forth in the annexed copy of an affidavit made by Jno. Watson, and
Thos. Exton, 18th June last, before the Mayor of Liverpool, and in
the account of the persons wounded in this occasion, both which you
are desired to peruse and consider.
The Lords of the Admiralty, judging it proper and necessary to take
notice of such outrageous behaviour, and of the insult which has been
shewed to His Majesty's colours by the master and crew of the ship
Upton in oppo8in$2; the WineheUea'a boat in coming on board her by
firing and w<iunding several of the boat's crew, they have been pleased
to direct the Proctor for the Office of Admiralty to proceed in the High
Court of Admiralty against such of the offenders then belonging to the
Upton as shall appear to have been guilty of such hostile and rebel-
lious proceedings ; and with these directions of their Lordships' the
Proctor for the Admiralty has received a list of the names of the fifteen
men who are now on board the WineheUea and other ships of war.
You will please to observe that the annexed affidavit sets forth that
when the WincheUea'a barge came up with the Upton, the captain,
Thos. Birch, called out from the cabbin window, and told the people
in the barge that the men on board had confined him and taken the
command of the ship from him. And the affidavit does not in any
part of it charge the captain with being actually concerned in this
misbehaviour or insinuate that he was concerned in it, but charges the
crew with the whole, without specifying their names otherwise than
in the list.
But as it is probable that the master of the Upton made this
declaration only to excuse himself, and to avoid being prosecuted for
this offence, and that there is reason to believe that he did not make
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CASES AND OPINIONS. 367
use of his anthority to prevent this outrage, but, on the contrary,
eucouraged his men in it.
1*/ Query. — Whether you think it advisable to commenoea prosecu-
tion against Thos. Birch, the master of the Upton, and against all and
every of his crew ? and whether it will be most proper to join them in
one and the same prosecution, or to separate them ?
2nd Qnery. — ^Whether a prosecution for such an offence as this be
most proper in the Court of Admiralty by Articles or by indictment
at sessions of Oyer and Terminer for the Admiralty of England ?
Isi Answer. — Upon perusal of the affidavits we are of opinion that it
is not advisable to proceed against Thos. Birch, the master, but that
the rest of the crew may be joined in one prosecution for opposing and
firing upon the Winchehea'a boat.
2nd Answer, — We humbly advise the prosecution to be commenced
by Articles in the Court of Admiralty.
Geo. Hay; Chas. Pinfold, July 17th, 1755.
CORRBCmON.
(Qu. — Same as in last case.)
On behalf of the Office of Admiralty for opposing the Winchelsed's
boat coming on board the Tarleton and in pressing her men for His
Majesty's service.
8th June, 1755.—His Majesty's ship Winchelsea, F. W. Drake, Esq.,
commander, being in the port of Liverpool, and Captain Drake having
received orders from the Lords of the Admiralty to impress seamen
for manning Bis Majesty's fieet, and being informed that a certain
English merchant ship called the Tarleton, James Thompson, master,
bound from Guinea, was coming from sea to that port, he ordered
Mr. Bobert Gideon, his lieutenant, Samuel Chalk, his master's mate,
Francis Exton, one of the ship's midshipmen, and several others of
his ship's company, to take the Winchelseas barge, in order to board
the said vessel and impress her men ; and in obedience to the said
order. Lieutenant Gideon and the other people of the Winchelsea took
the barge and went to meet the Tarleton. Discovering their fears of
being pressed, James Berry, the ship's carpenter, proposed to them to
defend themselves from being pressed, to which they all agreed, and
brought upon deck small arms, blunderbusses, pistols, and cutlasses*
and as they had one of the ship's guns loaded with grape shot, all the
sailors swore and declared that they would fire upon the King's boat
before they would be impressed ; the Tarleton being then under sail to
come round the Rock of Liverpool.
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868 CASES AND OPINIONS.
When the Winchelsea^a barge was oome alongside the TarleUm^
Lieut. Gideon found the hands all under arms, on which he hailed
her and asked for the captain, and was answered from on board and
a^ked what he wanted ; on which Mr. Gideon told him that if the
master, the boatswain, and the carpenter were not assisting to the
men in hindering him from boarding the said vessel, they should not
be pressed; whereupon the TarleUm^a hands called out to Lieut.
Gideon aiyl his men, and made answer, " D n your bloods, keep off,
or else we will sink you," and at the ^ame time presented two muskets
at the barge, which they attempted to fire, but they only flashed in
the pan and did not go off. Then Mr. Gideon again hailed the Tarlekm
and asked for the captain ; and one of the hands on board (who he
believed was Thompson the master) from off the said vessel's awning,
made answer, that he was the captain, and bid Mr. Gideon mind his
barge. Mr. Gideon then asked them whether they would not pay
some respect to His Majesty's colours by bhewing those of the Tarleion
and lowering their top-gallant sail; whereupon the Tarleton's crew
fired a volley of small arms at the barge, and several of the shot feU
near the barge, and one of them struck the barge's stem post.
Upon this insolent and outrageous behaviour Lieut. Gideon ordered
the people in the barge to fire at the same persons in the TarUton^
which they did by discharging two or three muskets, but finding this
had no effect, he ordered them to desist firing, and to row or pull the
barge ahead of the Tarleton, in order that they might get to the
Winchelsea and acquaint Captain Drake with what had happened, bo
that he might have an opportunity of firing upon the Tarleton as she
passed by, which was accordingly done, but without success.
The Tarleton having the day before taken a pilot to bring the vessel
round the Bock, and the pilot having observed this unjustifiable con-
duct of the Tarleton's crew, and that the Wincheheciy which was lyeing
near the Bock, fired several guns at the Tarleton, he proposed to lay
the Tarleton^s topsails aback, on which one of the sailors cursed him,
and struck him with the flat side of a cutlass he then held for attempt-
ing to bring the vessel to.
Lieut. Gideon observing that the WincheUeo^a sbot had no effect in
bringing the Tarleton to, he thought proper, with the said barge and
crew, to follow her up the river in expectation that she would come
to an anchor, and he accordingly followed tiQ she came up to Liver-
pool town, during all which time the Tarl^on^a hands fired several
times at the barge, and were heard desiring one another to mind their
aim. Whenever the barge rowed ahead of the Tarleton, or dropped
astern, there were musquetoons and swivels pointed to her from the
vessel, and if the barge came near the Tarleton, the people on board
called out to Mr. Gideon to keep off from her, or that she would fire
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CASES AND OPINIONS. 369
into the barge, so that from such threats and acts Lieut. Q. and
the other people in the barge were in manifest danger of their lives
daring the whole time, and prevented going on board the said vessel.
Upon the Tarleton'a coming up to the town of Liverpool her hands
ran her into tlie dock, and they all made their escape from her, by
means of which not one of them could be impressed into His Majesty's
service, and thereupon Lieut. G., with his men, were forced to
return on board the Winchelsea without being able to execute his
orders. During this transaction the ship's crew of the Tarleton seemed
to be and was encouraged in their resistance by the person who said
that he was captain, who in a contemptuous manner waved his hat at
the barge, and with his crew gave shouts and cheers, or holloas,
which was attended with many curses and wicked oaths, and threats
that they would cut any person in pieces who should board them ; and
Captain Thompson, the master, never attempted to prevent his men
from acting in the manner they did, or made use of his authority over
them, but he retired at the request of his people into his cabbin, though
he was neither compelled so to do nor confined therein, and then James
Berry, the carpenter, assumed to himself the command and direction as
captain of the ship ; and during the whole time Captain Thompson
never used any means, threats, or persuasions, to prevent his crew
from taking the ship's arms and firing at the King's boat ; but left
them wholly to themselves, and countenanced them in this outrageous
behaviour and contempt of His Majesty *s authority.
These facts having been sworn to by Lieut. Gideon, and two
other officers of the Winchehea, as well as by the pilot who was on
board the Tarleton, and upon these informations the Lords of the
Admiralty having directed the Proctor for the Admiralty to commence
a criminal prosecution against the said J. Thompson, the master, and
James Berry, the boatswain of the Tarleton, if it shall be found
advisable so to do, for opposing and preventing Her Majesty's ship the
WincheUea^a boat coming on board the Tarleton, to impress her men,
by firing from the ship into the said boat, and thereby wounding
several of His Majesty's subjects : and accordingly by a motion made
by the Advocate of the Admiralty, the Judge has decreed a warrant
or warrants to issue against the said J. Thompson and J. Berry to
answer to such articles as shall be offered against them on the behalf
of our Sovereign Lord the King for such contempt in the premises.
But you are desired to consider the particular circumstances in the
case, and to advise :
lit Query. — ^Whether it will be proper to commence and carry on
this prosecution by articles in the Court of Admiralty, or by indict-
ment at the next sessions of Oyer and Terminer for the Admiralty of
England?
2 B
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370 CASES AND OPINIONS.
2'nd Query. — Whether, if the faots above stated are proved, it is not
an offenoe whioh is cognizable in a Conrt of Admiralty ; and whether
the Judge of the said Conrt may not pnnish suoh delinquents by the
maritime law and the rules of the Court of Admiralty by fine and im-
prisonment and oosts ?
Srd Query. — ^Whether it be most proper to join the said Thompson
and Berry in one and the same prosecution against each of them ?
Ut Aimoer. — We are of opinion it will be most proper to prosecute
this offence by Articles in the Court of Admiralty.
2nd Answer. — ^We are of opinion that the TarUUm^ by refusing to
show and to lower their topgallant-sail, are guilty of an offence cog-
nizable in the Court of Admiralty, and punishable at the discretion of
the Judge.
Srd Angioer. — ^We see no particular reason for beginning separate
prosecutions against each of the offenders.
Geo. Hat; Chas. Pinfold, July 17, 1755.
Prize.
Qtt. — ^Are any ships entitled to share who were not in sight at the
time of the capture ?
1756. — ^Admiral Boscawen, lyeing with a fieet under his command off
TJshant, May 9th, detached Captain Gordon in His Majesty's ship the
St. AJhane^ with Captains Palliser of the Eagle, and Milbanke in the
Bomney, under the command of Captain Gordon, with directions to
proceed to Cape Ortugal and cruize off that place for sixteen days, and
then rejoin that fleet. Accordingly said three ships sailed, and. May
11th, took a French ship called La FideUe. This was before the
declaration of war. On the 19th, after war had been declared, they
all chaced a French ship, the St. Albans fired the first gun, but the
Bomney being more to the windward, got up first and sent his boat on
board. She is called the Thisbe.
On the 20th the said three ships were in chase of another ship, when
the Eagle spied three other ships, upon which the St. Albans and the
Eagle go in chace of them, and ,the Bomney continued in chace of the
first. The Eagle gets up with two of them called the Triton and St.
Mark, and takes them in sight of the St. Albans^ while the St. Albans
continued in chace of the third, and long after she hadjiost sight of
the Eagle, came up with and took the third prize called the Venus;
so that it appears the first prize, the FideUe, was taken by the St.
Albans in sight of the Eagle and Bomney. The Thisbe was taken in
sight of them alL The Triton and St. Mark were taken upon the
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CASES AND OPINIONS. 371
cbase of the St. AJbatu and E<igle, but by the E<igle only, in sight of the
St. Albans. The Ventu upon the chase of the E<igle and St. Albans^
but by the latter only, ont of sight of the Ecigle or Bamney.
By the Song's Proclamation of July 7, 1756, the produce of all
prizes are directed to be divided amongst the flag-officers, captains,
officers, and men, in the following manner, viz., in case such prize be
taken by any of His Majesty's ships under the command of any flag-
officer actually on board, or directing and assisting in the capture,
such flag-officer to have one-eighth; the other eighth parts to be
divided in proportions therein mentioned amongst the captains,
officers, and men, actually on board at the taking of such prize.
By this it appears the being on board at the capture cannot be ex-
tended further than to such as were on board some of the ships which
in some degree could be supposed to aid and assist the capture ; which,
we apprehend, could not be the case of any officers remaioing with
Admiral Boscawen. However, the whole crew under the command of
Admiral Boscawen insist on a right to some share in all these prizes ;
and the officers and men of these three ships insist that they are
equally entitled to their share of each of these prizes, as much as if
each prize had been taken by them all.
The admiral's share is admitted.
lit Query. — Are the officers and men on board the squadron remain-
ing with Admiral Boscawen, or any of them, entitled to any and what
share of the prizes taken as before?
Answer. — I am of opinion that no part of the squadron remaining
with Admiral Boscawen is entitled to any share of these prizes taken
after the declaration of war. William Murray, A.G.
Anewer, — I think the officers and men remaining with Admiral
Boscawen are not entitled to any share of the prizes taken by the St.
Albans, Eagle, and Bomney. George Hat, Ad. Beg.
2nd Query. — Is the Bomney entitled to any share of the Triton,
St. Marhy or Venus f Or is the Eagle or Bomney entitled to any share
of the Venus, or how ought these prizes to be distributed ?
Answer. — I am of opinion that all three ships are entitled as joint
captors to the said prizes, taken after the declaration of war without
distinction. For upon the above state I consider them all as aiding
and assisting in each capture. The prize being taken in sight is not
the criterion. "Willlam Murray, A.G., July 25, 1766.
Answer. — The Bomney, Eagle, and St. Albans, being a detached
squadron, cruizing together under the command of Captain Gordon, I
think are equally entitled to all prizes taken during the joint cruize.
The circumstance of being in sight or not is in this case immaterial.
Geo. Hay, Doctors' Commons, July 22, 1756.
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372 CASES AND OPINIONa
Prize.
Qtt.— Can a sentence of restitution to A., as neutral property, be made
use of to bar B.*8 right, who brings the same vessel in for
adjudication ? (1759.)
A Dutch ship called the Juliana^ Christian Stooft, was seized and
brought to Jamaica the latter end of 1757, and being regularly claimed,
upon a full hearing and fair trial, it appeared by incontestable and
invariable evidence that the ship and cargo was the property of
Messrs. Thomas and Adrian Hope, Dutch subjects and merchants in
Amsterdam, and was bound to St. Domingo with lawfull merchandizes,
having nothing contraband on board for sale. Whereupon the Judge
thought proper to decree restitution of ship and cargo, but that the
ship's guns and gunpowder, as she was bound to a French port, and
might be compelled to leave them there, should be landed and de-
livered over to the captors (North American Privateers), as appears by
the sentence under seal.
Before the ship could be got ready for sea, another Judge of the
Admiralty came from England to Jamaica ; who thought proper to
condemn every Dutch ship that was brought before him, at all event&
The ships of war encouraged by this proceeding, on the sailing of the
Juliana with the above sentence of acquittal on board, went out after
and brought her in again, when she was again libelled and claimed ;
and though she had not sailed out of sight of the island since her last
acquittal, our new Judge thought proper to condemn both ship and
cargo.
The claimant appealed, and Mr. Seymour, who advanced money
for the claim, gave security to prosecute, and has transmitted all
papers and proceedings for appeal regularly under seal, and the captain
has drawn bills on his owners, Messrs. Hope, for re-imbursement of
Seymour's charges. The owners, discouraged by the condemnation of
the America, decline paying the biUs, unless they have Dr. Hay's
opinion in their favour, and can have a prospect of success.
Qtiery. — Therefore whether in this particular case the property
being manifestly proved to be Dutch throughout, the proceedings and
sentence of acquittal upon record in consequence not appealed from
by the captors in the first instance, the owners may not expect resti-
tution and satisfaction by pros^uting their appeal ?
Answer. — The Judge ought certainly to have condemned ship and
cargo in the first instance, as it appeared that the Juliana was going
directly and openly to the French Islands ; under which circumstances
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CASES AND OPINIONS. 373
Dutch shipe aie deemed to be Freticb by adoption or legitimation.
This was the case of the .... America. I suppose this ship was
bought in a seoond time by a different captor. If so, it may be
doubtful whether the decree of restitution may be pleaded as an
absolute bar against his right. I am inclined to think, the parties
being different, the new Judge might take cognizance of the cause.
Upon which supposition I cannot advise the owners to prosecute this
appeal. George Hay, Doctors' Commons, Nov. 30, 1759.
LlABILTTT FOB BePAIRS.
Qu. — Whether the valuation of the ship after she was partly pulled to
pieces was regular ; and whether it should not have been done
before the ship was opened ? W hether C. D. having [no] notice
of A. B.'s proceedings, must pay his proportion of the repairs,
or take one-eighth of what the vessel was valued at ; or what
remedy has he against A. B. for his share ?
A. B. sailed in his ship, of which he is master, into a port in
England in order to repair her. When the carpenters opened the
vessel they found her so bad that they said it would take a large sum
of money to repair her, and therefore, in order to make the owners
take their parts at the valuation or pay their proportions of the
expense, the master A. B. acquaints his owners at the port where he
was that the vessel was to be valued and repaired. But 0. D., who
has one eighth part of the vessel and lives sixty or seventy miles
from the place where the ship was repaired, was not acquainted with
A. B.'s proceedings until the vessel was finished.
Ist Query, — Whether the valuation of the ship after she was partly
pulled to pieces was regular, and whether it should not have been
done before the ship was opened, for C. D. believes the vessel would
have sold for double the money she was valued at had she been exposed
to sale in the common way.
2Hd Query. — Whether C. D., as he had no notice of A. B.'s proceed-
ings, is obliged to pay his proportion of the charge of repairing the
ship, or take one eighth part of what the vessel was valued at, though
much undervalued ; or what remedy has A. B. against B. for his part
of the vessel ; and what would you advise C. D. to do in the affair ?
Answer. — If the sbip had been valued before she was partly pulled
in pieces it would have been more for the advantage of the owners,
because she would have yielded money before her defects were known.
But it may be said by the master that he did not apprehend the vessel
was in so bad a condition as she was till after she was opened ; and
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374 CASES AND OPINIONS.
then finding it would require a large stun of money to repair her, it
was thought proper to have her valued, that the owners might have
it in their option either to take their proportionable shares of the
money she was valued at, or to pay their proportion of the expense of
repairing her, and keeping their respective shares of the ship. And
although 0. D., living at a great distance, had no notice of the master's
proceedings till the vessel was near finished, yet since the master did
nothing without acquainting the other part owners who lived at the
port where the ship was repaired, there seems to be kss room to
suspect any collusion and unfair dealing ; and therefore I apprehend
C. D. will be obliged to pay his proportion of the charge of repairing
the ship, unless he will take his proportionable share of the money the
vessel was valued at ; and I conceive it is more advisable for him to
pay his proportion of the charge of the repairs of the ship than to
enter into a litigation touching the valuation that has been set upon
her. Wm. Strahan, Doctors' Commons, May 18, 1739.
Bottomree.
Qu, — ^Is it a breachof the Bottomree BUI, and is not the ship liable to
be arrested, notwithstanding the words of the Bottomree Bill ?
I, Thos. Glover from Scarborough, master of the ship called the
John and WiUiam, burthen fifty tons, lyeing now at Moss in Norway,
and boimd from hence with the first fair wind to Scarborough in
England, which I intend shall be my livering port, do by these
presents acknowledge and grant to have borrowed and received &om
Messrs. Christie, Hoidt, & Huglesang the sum of £84 10«. 8(2. sterling
money on bottomree and true adventure at sea on my aforesaid ship's
keel and rigging as it is now conditioned, which adventure, sea-
hazard, and bottomree shall be at an end four weeks after my safe
arrival at Scarborough, at which time I oblige myself truly to pay or
cause to be paid the aforesaid £84 10«. Sd,, with 3 per cent, for insur-
ance over sea, making in all £87 la, 4{Z., four weeks after my arrival
at Scarborough, to the aforesaid Messrs. Christie, Hoidt, & Huglesang,
of my aforesaid ship, or where I break bulk, in current English coin
free of all charge and damage to be sustained by them, and to their
further security I bind my aforesaid ship with its rigging, as also my
person and goods of which I am now or henceforth can be possessed
of, moveable and immoveable, submitting the same to the sentence of
all Courts and Judges whatsoever. In witness whereof I have sub-
scribed three bills of bottomree under my hand and seal, all of the
same tenor and date, the one of which three being accomplished, the
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CASES AND OPINIONS. 875
other two to stand void ; and furthermore have desired two of my
sailors, by name Nicholas Sommerson and Henry Hind, to witness my
subscription and attest that I had nothing else to give them in sepn-
rity of the aforesaid sums of money, as {aie) my aforesaid ship and
riggijig» on which I have not formerly anywhere or from any person
received money on bottomree.
Signed Thos. Glover,
Moss, 16th Oct, 1732.
Nigh. Suhmebson.
Henry Hind.
That the said Glover, contrary to the said clause in the bottomree
bill, carried his ship to Boston in Lincolnshire, where she arrived ten
or twelve days since, and is there delivering her cargo.
Query, — Is that a breach of the bottomree bill, and is not the ship
liable to be arrested, notwithstanding the words of the bottomree bill,
viz., ** Which adventure, sea-hazard, and bottomree shall be at an end
four weeks after my safe arrival at Scarborough ? "
Ansioer. — ^If the diip was not forced into Boston by stress of weather,
but was designedly carried into that port by the master, with an
intention to deliver her cargo there^ instead of going to Scarborough,
which he gave out to be his intended port of delivery, I take it to be
a breach of the bottomree bond, and ^e ship is liable to be arrested
foT the money due upon the said bond.
Will. Strahan, Doctors' Commons, Nov. 17, 1732.
Wreck.
0«. — Can the pigs of lead be deemed wreck, so as to belong to Lord B.,
lord of the manor ; and is he entitled to any and what part for
salvage? 2nd Qu. — ^If it does not belong to Lord B., is not the
King entitled to some and what part thereof as a perquisite of
the Admiralty on account of salvage ? Srd Qu, — What diould C.
do to recover the lead ?
Jno. Murray and Jno. Nichols, of Chester, in or about September,
1727, at the port of Chester, shipped on board the ship BagdeU,
Geo. Cockerill, master, 2042 pigs of lead weighing . . • the property
of J. Creed, Esq., of London, merchant, to be delivered at the port
of London on the 1st of January lasU The said ship in her passage
from Chester was drove on the rocks of Dunslarry in the Bay of
Dublin, and there stuck. The master and whole crew were lost.
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376 CASES AND OPINIONS.
Lord Blessington, as lord of the manor of Mounto wn (?), within which
lordship Dunslarry lies, has seized the wreck and is now getting up
the cargo, notwithstanding the same at dead low water is snrronnded
by the sea. A great part of the said cargo he has already disposed of,
and is endeavouring to get the remainder. Some of Mr. Creed's
friends having advice of the misfortune, to prevent the embezzle-
ment of the lead, applied to the King's officers to seize what was
fished up, tinder pretence of a duty due for the same. The persons
were obliged to deliver up possession to Lord B.'s agents. Upon
this application was made to the Admiralty Court, who issued a
warrant to seize the said lead, as belonging to the King as a per-
quisite of Admiralty, by virtue of which some part of the said lead
was seized, but the greater part so seized was afterwards foroeably
taken away by Lord B. and his followers, who are now possessed
thereof, and still continue to fish up all that can be got; which
Lord B. keeps forceable possession of by having armed men where
the lead fished up lies, and where the ship was cast away, to prevent
those appointed by the Court of Admiralty from using their endea-
vours to secure the same for the use of the proprietor.
Query, — Can the same be deemed wreck so as to belong to Lord B«
as lord of the manor, or is he entitled to any and what part for
salvage?
Answer. — I apprehend that these effects do not belong to the above
said Lord in right of his manor, but that they still are the property
of that person who was the legal owner before the shipwreck. By
the maritime law, and also by the statute 3 Edw. 1, c. 4, owners were
allowed a year and a day to claim their goods lost in shipwreck ; but
the old law has been rendered more favourable to merchants by
12 Anne, entitled * An Act for preserving all ships and goods which
shall be stranded on the coasts of this Kingdom, or any other of His
Majesty's Dominions.' By this law it is provided that if the goods
shall not be legally claimed within the space of twelve months next
ensuing the shipwreck by the rightfull owner, then public sale shall
be made thereof, and after all legal charges deducted the residue of
the money arioeing by such sale, with a fair and just account of the
whole shall be transmitted to the Exchequer, there to lemain for the
benefit of the owner, when appearing ; who on proof made to one of
the Barons of his right, shall upon his order receive the same. This
Act was made for three years only, but was made perpetual by
4 Geo. 2.
Query. — If the same does not belong to Lord B., is not the King
entitled to some and what part thereof as perquisite of the Admiralty
on account of salvage ?
2nd Answer. — The King is entitled to no part of the shipwrecked
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CASES AND OPINIONS. 377
goods, except for salvage, warehouse room, or incidental charges to
those his servants who shall contribute to the preserving the effects.
N.B. — Mr. Creed can prove from marks, &o., that the lead is his.
Srd Query. — What is the most advisable for Mr. Creed to do in this
affair to reoover the lead ?
3rd Anstoer. — ^In a common case where judicial proceedings are not
obstructed, there can be no doubt of recovering the lead upon proof of
the property. The Judge of the Admiralty may seize what remains
within his jurisdiction for the Crown ; and on evidence of property
he must restore it, paying salvage, to the subject. If the Judge of
the Admiralty's authority be not obeyed, an application in a proper
way to the Lords of the Admiralty will procure a sufficient force to
oblige obedience to be paid to a legal process in such a case as this.
And I conceive the method above cited to be the most proper and
likely to be most effectual.
G. Paul, Doctors' Commons, April 19, 1728.
Contraband.
Qu. — ^What may be deemed, according to the King's instructions to
ships, "any other contraband goods" so as a vessel may be
safely taken ? 2nd Qu, — What are the treaties for a commander
to know, and how must he conduct himself to comply with the
instructions aforesaid ? 3rd Qu. — If Spanish goods are found on
board a neutral ship, may not the ship be stopped and carried
into one of our own ports, or any other port, in order to seize
the Spanish goods and condemn them ; and whether any freight
is to be paid for the same and to whom at the time of capture ?
4ik Qu, — if the crew taking an enemy's ship are not entitled to
head money, gun money, and what other bounty besides the
produce of the Prize ? 5th Qu, — If a privateer carry a neutral
into port, supposing she has contraband goods, and she proves
to have none, or is in any [qu. no] manner liable to confiscation,
what damages are the owners of the privateer liable to, though
there was a real cause of suspicion ?
In the instructions given to ships aulhorized by letters of marque
or commissions for private men-of-war, it is directed or said in the
2nd Article, "that all ships of what nation soever carrying any
soldiers, arms, powder, ammunition, or any other contraband goods
to any of the territories, lands, plantations, or countries of the King
of Spain shall be seized as Prizes."
Isl Query. — What may be deemed " any other contraband goods," so
as a ship or vessel may be safely seized and taken ?
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378 CASES AND OPINIONS.
l8t Angwer. — Under the name of contraband goods are oompre-
hended only arms, great gnns, bombs with their fazes, and other
things belonging to them, fire balls, gunpowder, match, cannon ball,
pikes, swords, lances, speers, halberds, mortars, petards, grenadoes,
saltpetre, musquets, mnsquet ball, head-pieces, breast-plates, ooats of
mail, and like kinds of arms, proper for arming soldiers, mnsquet
rests, belts, horses with their famitnre, and all other warlike instru-
ments whatever. But ropes, sails, anchors, masts, planks, boards,
and all other materials for building and repairing ships are reputed
free goods; and all wares and merchandizes except as above men-
tioned may be carried by neutral ships into the enemy's country
except to places blocked or invested.
In Article 6 of the Instructions it is said that all commanders of
ships, and so forth, shall not do or attempt anything against the true
meaning of any article or articles, treaty or treaties, depending
between us and any of our allies touching the freedom of commerce,
in the time of war, and the authority of passports or certificates under
a certain form in some one of the articles or treatys, and so forth, but
only against the King of Spain, and so forth.
2nd Qtiery, — As the commanders are obliged to observe all treaties,
of which they may be supposed to be ignorant, therefore what are the
proper treaties that are absolutely necessary for a commander to
know and observe ; and in what manner are they to conduct them-
selves so as to comply with these Instructions ?
2nd Anatoer, — ^It is an axiom (though a hard one) that no person is
presumed to be ignorant of the law, which makes it necessary to know
the several treaties with the states in alliance with us where we may
have any concern. But the principal ones are the treaty between
England and Holland, 1674, and the treaty at Utrecht with France,
1713. The principal directions as to the freedom -of commerce and
navigation thereby are, that if a neutral vessel be met at sea by a
privateer, the captain of the privateer may send his boat with two or
three men on board her, and on her producing her passport, wherein
the property of the vessell is mentioned, she is not to be farther
searched or detained unless she be bound to an enemy's port, in which
case she must likewise show her cockets given at the Custom House
from whence she came setting forth the particulars of her lading, that
it may be known whether she has any contraband goods on board. If
there be none, she must be dismissed, but if the whole lading be
contraband, she may be brought in and the goods condemned ; but
if part only be contraband and the master is willing to deliver the
same up, the ship is not to be hindered from prosecuting her voyage ;
otherwise she may be brought in.
3rd Query. — ^If Spanish goods are found on board la neutral ship,
whether the ship may not be stopped and carried into one of our own
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CASES AND OPINIONS. 379
ports, or any other port, in order to seize the Spanish goods and con-
demn them, and whether any freight is to be paid for the same at the
time of capture, and to whom ?
3rd Answer. — ^By the express words of the treaties with Holland,
France, and Portugal, free ships make free goods ; and enemy's goods
on board then^ are not liable to be seized, whether they are sailing
from their own to an enemy's port, or from an enemy's port to any
other, or from one enemy's port to another, unless the goods are
contraband. But notwithstanding this, and although there are treaties
to the same effect between our allies and the Crown of Spain, the
effects belonging to subjects of Great Brittain have been seized by the
Spaniards on board neutral ships ; and in our own Courts of Admi-
ralty Spanish goods have since this war been condemned, taken out
of neutral ships, the captain being paid his freight for the goods.
But I cannot say that this is warranted by treaty, but rather passed
by default for want of a claimer, and I should not think it secure to
bring in our own ports any of the ships of our allies by reason of their
having enemy's goods on board.
4ih Query. — ^If the ship's company taking an enemy's ship are not
entitled to head money, and gun money, or what other bounty are
they entitled unto besides the produce of the Prize ?
4th Answer. — The head money is given to the captors in lieu of gun
money, as being more beneficial ; it being £5 a head for every man
living on board the enemy's ship when the engagement b^un, to be
paid after condemnation by certificate accordiog to the King's pro-
clamation, 19th June, 1740, and in private ships of war to be divided
according to such agreement as the owners, officers, and sectmen have
made in writing. It is not due where a ship is taken without oppo-
sition.
5th Query. — ^If a letter of marque, or private man-of-war shall stop
a neutral ship, and carry her into a port supposing she hath contra-
band goods on board, and she does not prove to have any, or is liable
in any manner to be confiscated^ then what damage are the owners of
such letter of marque, ship, or private man-of-war liable to, although
there was real cause of suspicion ?
5ih Answer. — Where there is a real cause of suspicion that the ship
has contraband goods on board, or is of Spanish property if she be
brought in, the Court will pronounce it to be just cauhc of seizure, and
although it proves to be a neutral ship and shall be dismissed as such,
yet the owners thereof will be condemned in costs, and the captors
will not be liable to any damages. But if the Court shall be of
opinion that there was no just cause of seizure, the captor will be
liable to costs and to such damages as the ship may have suffered.
J. Andrew, March 31, 1741.
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380 CASES AND OPINIONS.
Wages.
0u, — Are the mariners entitled to any and what wages ?
The ship Tyger^ bound from the port of London to Newfoundland,
thenoe to New England, thence directly back to London, or else to
Jamaica and thence to London, for which Yojage the whole crew were
shipped. The Government agreed with the owners of the ship to
caiTy over recruits from the port of London to Newfoundland at 12».
a ton per month. The ship having taken in her cargo and the
recruits broke ground at Gravesend, September 18th, 1744, and pro-
ceeded on her outward bound voyage for Plymouth, in order to
proceed with convoy, but was lost by a violent storm in Torbay, near
Dartmouth, February 27th following, and all her cargo, most of the
recruits, and some of the sailors were lost. Notwithstanding the loss
of the ship the Government have paid the owners the monthly tonnage
from the time the ship broke ground at Gravesend to the time she
was lost. Some of the sailors who were saved now demand wages,
and threaten to sue the owners.
let Query, — Can the sailors be entitled to any and what wages in
this case?
Igt Answer. — It is evident in this case that the ship neither did nor
could make any freight on this voyage before she was lost, and con-
quently the mariners then belonging to her cannot, as I apprehend,
have any right to demand or recover any part of their hire or wages
agreed on for this voyage ; the special circumstance of the tonnage
paid by the Government to the owners to the time of their being lost
does not, in my opinion, alter the case in this respect, or subject the
owners to the payment of any part of the wages on that account.
Hen. Edmunds, Doctors' Commons, June 12, 1745.
Where a ship is lost, as no freight can strictly be due, the mariners
are not entitled to any wages ; but if any part of the tackle, materials,
<&c., be saved, it must first be applyd upon an avaridge to the payment
of wages. But in the present case, as the Government has paid the
monthly tonnage till the ship was lost, I am enclined to think the
mariners will be entitled to wages until that time, and if it be not
sufficient, it must be applyd towards their wages upon an avaridge
amongst the whole ship's company that were hired, as well those
who escaped as the executors and administrators of those who were
lost.
J. Andrew, June 28, 1745.
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CASES AND OPINIONS. 381
I am of opinion the sailors are entitled to wages in proportion to
the tonnage received from the time the ship broke ground at Grayes-
end to the time she was lost.
Geo. Lee, July 8, 1745.
Prize.
Opioion signed Geo. Lee, Doctors' Commons, September 11, 1745, as to the manner
in which the subscribers to a fund raised for carrying on a privateering adven-
ture should share in prizes taken ; and as to enforcing the claims of certain of the
subscribers against the managers of the undertaking. The Doctor advises that the
Court of Admiralty has no jurisdiction in the matter, and that a bill in Chancery
should be filed.
Salvage.
A» to Salvage on 12 Anne^ c, 18.
The Lovely Peggy ^ Thos. Vavaser, master, from Jamaica to London,
laden with sugar, mm, and other goods, after meeting with a storm
and being obliged to throw 11 ont of 12 goods overboard, arrived at
Tenby Bay, where in another storm she lost her cables, anchors, and
most of her sails, and the crew, for the preservation of their lives,
quitted her. The ship drove into the channel between Wales and Eng-
land without any person on board, and by the assistance of 15 or 16 men
was brought safe into Minehead pier. From different accounts the
ship had, when brought in, from 4 to 8 feet water in her hold. A
special messenger is now going down in behalf of the proprietors of
the ship and cargo, and your directions are desired in order to guide
his conduct in this affair ; particularly in what manner he shall pro-
ceed to accommodate the matter with the salvors ; also what salvage
is due in your opinion.
Answer. — As the mariners left the ship for the preservation of their
lives, and got safe to land, the owners have an undoubted right to
their ship and goods, paying a salvage to those who ai^isted in safely
conducting the ship into Minehead pier, and took care of the goods.
As to the quantum of the salvage, it must be a reasonable reward,
proportioned to the expense, care, and trouble of the salvors, and
ought to be paid within 30 days after the service performed. If this
cannot be agreed upon between the owners and salvors, it must be
adjusted by three justices, whose adjustments are binding and recover-
able at law. Much, therefore, will depend upon the discretion of the
person employed on this occasion. For further directions the gentle-
men concerned are referred to 12 Anne, c. 18, which is very explicit.
Geo. Harris, Doctors' Commons, Jan. 19, 1762.
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382 CASES AND OPINIONa
Prize.
Adopted French Ships.
Qu. — As this trade is not permitted to be carried on in time of peaoe by
the French, except in French bottoms, will not French property
on board neutral vessels be deemed good and lawful! Prize ?
In times of peace the French will not permit any but their own
subjects to trade to and from France to the Levant, nor any trade to
be carried on but in ships belonging to France. The French at the
beginning of the present war suffered greatly by the British cruisers,
by which their trade to that port was greatly reduced. But for some
time past they have carried on their trade to and &om Marseilles and
the Levant in Dutch and other neutral ships. At first their docu-
ments were made out covertly under the names of persons of that
particular state or country to which the ships belonged, but lately
have been made out in their own names.
let Query, — ^As this trade is not permitted by France to be carried
on in time of peace, except as aforesaid, whether French property on
board such ships will not be deemed in England good and lawfull
Prize, being brought in by any British cruisers ?
N.B. The Dutch commanders will not execute any charterparties
with the French, but sign bills of lading, alleging the focility they
thereby have in recovering their freight, preferable to what they
think they should have if they executed charterparties.
The insurance paid by the French [is] 2 per cent. ; by the English
from 15 to 20 per cent., who pay three times as much for freight as
the French.
let Answer, — I apprehend that French property on board Dutch
ships in an European voyage is free by the Treaty of 1674. In ships
not privileged in the same manner the property is confiscable.
G. Hay, Blarch3l, 1762.
Average.
Qu, — Whether an action does not lie against H. for putting K.'s goods
on board contrary to his order ; and if an average can't be had
for the goods saved ; and whether an action lies against every
one that took off his goods, or against the master only ; or what
remedy has E. for the loss of his goods ?
E. sent to H., shipmaster, to carry several parcels of goods from
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CASES AND OPINIONS. 383
Gkkinsborongh to Yarmouth, part of which was cheese. He was fully
loaded, and therefore hires another vessel, pats B.'s goods, contrary to
his order, on board the said hired vessel bound for Tarmonth. In a
passage she was taken in a storm. The mariners threw overboard all
B.'s cheese to save the ship and the rest of her cargo. The pxoprietors
of the goods that were saved, having early notice, got off their goods
before R heard of it.
l8i Query, — Whether an action don't lye against H. for putting the
goods on board contrary to his order, and if an average can't be had
for the goods saved ; and whether an action lyes against every one
that took off his goods, or against the master only, or what remedy
can B. have for the loss of his goods ?
Ist Answer, — ^I am of opinion that if B. did specially direct his goods
to be laden on board a ship certain, to be navigated by H. as master,
and H. has, contrary to orders, put them on board another vessel, then
an action will lye against H., but not if in general entrusted with H.
to send or carry them to Yarmouth.
I am of opinion that, the ship being lost, no average is due, but B.
must set down by his own loss ; but had the ship arrived safe, B.
might have sued the master, and the master might have had his
remedy against the others by retaining the goods saved till average
had been paid.
Njlth. Lloyd, Jan. 21, 1716.
Wages— Bottomree.
Qu. — Can those who have the grand bill of sale stop the ship in
England? Can the ship be reclaimed from A. M. on paying
him the money the ship was sold at, and his charges in fitting
out the said ship, and all other charges since the purchase?
Can he who lent the money on the grand bill of sale arrest and
stop the ship for the payment of his money ? If the ship should
be arrested in England, and the sentence in Holland be adjudged
good, can A. M. recover damages for such false arrest ? Must
not the bottomry bills be paid before the ship can be demanded
by any one who may pretend a right to the ship ?
Wm. Temperton, master of the ship William^ of Scarborough, comes
with his ship to Amsterdam, and there takes in a freight to Oporto
and back to Amsterdam. On his going out from Amsterdam he
bottomrys his ship for [£]800, to be repaid at his return to Amsterdam,
with 20 per cent, advance. On his arrival at Amsterdam he could
not pay the bottomry bills nor his men's wages ; so that the men and
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384 CASES AND OPINIONS.
the bottomry bills got sentence there against the said Temperton, and
the ship sold by execution and laws of Holland, and is bought by snch
of Cardie by A. M.
Ut Query, — Can the persons who have the grand bill of sale stop the
ship in England ?
let Answer, — The claimants under an original bill of sale may take
out a warrant to arrest the ship in a cause of property, which is
granted of course ; yet I conceive that the Court of Admiralty hens,
apon proof of the sentence at Amsterdam, and the purchase by decree
of Court under that sentence, will supersede the arrest.
2nd Query, — Can the said ship be reclaimed from A. M. upon paying
him the money the ship was sold at, and his charges in fitting out the
ship, and all other charges since the purchase?
2nd Answer, — The property of the ship is so fully vested in A. M.
that I don't think it can be reclaimed from him, although they should
tender the prime cost and all subsequent charges, the adjudication of
the Court being as good a title as any conveyance from the first
proprietor.
The said T. being sole owner of the said ship, and the grand bill of
sale being in his name, boiTowed money on her before he came to
Amsterdam, and the grand bill of sale was assigned over.
Brd Query, — Can he who lent the money on the grand bill of sale
arrest and stop the ship for payment of his money ?
Brd Answer. —Bottomry and mariners* wages are debts of the highest
nature, and to be preferred before all others, and though a purchaser
from a private owner buys that ship subject to all incumbrances, it is
otherwise with one who buys it under a sentence of this Court, all
persons being summoned who have any right, title, or interest in it,
and upon their contempt excluded. The debt due to the assignees of
the bill of Bale no longer follows the body of the ship, nor will the
ship be answerable for the payment of his money.
4th Query,— If the said ship should be arrested in England, and the
sentence in Holland be adjudged to be good, can A. M. recover
damages for such false arrest ?
4th Answer, — The assignment of this bill of sale will be a justifica-
tion for arresting the ship, the assignee having a right to enquire
how his claim is set aside, yet, if after producing the sentence given
in Holland he should dispute the validity of it, it being adjudged to
be good, be will be liable to pay expenses.
5th Query, — Must not the bottomree bills be paid before the ship can
be demanded by the possessor of the grand bill of sale, or by any
others in England who may pretend a right to the said ship ?
5th Answer, — I presume the bottomree bills are satisfied out of the
money arising from the sale of this ship, but if any part remaining
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CASES AND OPINIONS. 885
unpaid, or the parties are obliged to refand in case any claimant
should appear who might dispnte or set aside the sentence in Holland,
and yet the debt upon bottomree will follow the ship, and such
claimant will be answerable to the full yalne of the ship for snch
demands.
J. Andrew, March 13, 1717.
Eeclaimino a Vessel Condemned.
Qu. — Can't N. be arrested by an Admiralty warrant for damages, as
well as the ship be arrested in property ?
The Friendship, of Bridlington, made a voyage from Sunderland to
Rotterdam, and was there arrested for mariners' wages, workmen's
bills for repairing and refitting, and was there condemned by the
Conrt of Admiralty to be sold, and was accordingly sold to the highest
bidder — Bobert Weskett. The Scheepers (1) made him a bill of sale,
and he afterwards sold her to Henry Thompson, who sent her on a
voyage to Sunderland, where on her arrival Wm. Newton, her former
owner, arrested the master, and by clandestine means hath taken away
the rigging ; and though he had an Admiralty warrant to arrest her,
never would execute it, but vi ei armis seizes the rigging and arrests
the mate also ; siuce which the master is gone for Eotterdam, leaving
the hull behind biin in possession of one of his men, but not ia pos-
session of Newton ; but it is apprehended now the master is gone
Newton will take the hull and sell her.
N.B. Weskett hath not made the bill of sale to Thompson.
Ut Query, — What is advisable for Mr. Thompson. or his agent
to do?
Isi Answer. — I am of opinion that by the sentence of the Court of
Admiralty at Rotterdam the property of this ship, her tackle, apparell,
&c., was well vested in R. W., who is the only person that can con-
test it with Thompson, and that on pleading the condemnation in the
Admiralty of England, N., the former owner, will be condemned in
charges for what he hath done in seizing the rigging and detaining
the vesseL I am of opinion that since the master of the Friendship is
gone for Rotterdam, the possesbion of the ship, being only committed
to one of her men, may be thought to be very precarious and uncertain ;
therefore it will be most advisable for T. or his agents to arrest the
ship in property by a warrant from the Admiralty of England, and to
demand the sails and rigging wherever he meets with them. They
will secure the possession of the ship, prevent her being carried farther,
and obtain a restitution of her rigging, &c., or else bring it to a ques-
[(1) Judges of the Court.]
2 c
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386 CASES AND OPINIONS.
tion in a proper Court, when the condemnation in Holland and the
purchase under it will justify Mr. Thompson.
2nd Query, — Whether we can't arrest Newton by an Admiralty
warrant for damages, as well as arrest the ship in property ?
2nd Answer. — I am of opinioij we can't arrest N. by an Admiralty
warrant for damages, but such damages must be recovered at common
law, and that only the ship can be arrested by an Admiralty warrant,
which Court will give him his costs.
Chas. Pinfold, July 3, 1722.
Like opinions of Wm. Peere Williams and 0. Weary, dated Jan. 15, 1722, and
Feb. 8, 1722, upon the same case.
Bottomree (1).
Qu. — If the 6d, per month interest continues till the payment of the
money ? Qu, — If money lent on bottomree is not preferable to
mariners' wages? Whether the sailors having arrested the
sbip for their wages, and the owner bailed her, he may not put
them out of her ? Qu. — Can the Court on the action of property
brought by Dansey, though his assignment is only for half the
bottomree bond, give him possession of the whole ?
George Dansey is one half owner of the ship Mary and Ann of
Gosport, William Hucks is owner of the other half, and master. The
ship being bound from Gosport to Spain and back, Hucks, in order to
set out the ship, borrows of Dansey £88 on bottomree at 6d, per month,
to be paid fifteen days after ship*s arrival. The master whilst abroad
buys wines, which is consigned to himself, but proving bfwi, pretends
were bought on the account and risk of Dansey. The ship arrived at
Gosport 29th July last. Dansey hath received no money on account
of the ship or voyage, though he hath distributed £64 and upwards on
the ship's account, besides the £88 and interest. Hucks has sold the
outward cargo and received the money, as also the freight and other
profits of the voyage, and not accounted for the same, or even paid
the sailors' wages ; but e contra the ship is arrested for the mariners'
wages and bailed by Dansey. She is also arrested by Dansey in pro-
perty, to which no bail.
N.B. The action in property i^ against the whole ship. The master
Hucks is supposed incapable of giving any satisfaction* The wines
are still on board. The ship is worth little more than £100. Now
[(1) There is a copy of this case and opinion amongst the Admiralty Court
papers in the Record Office.]
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CASES AND OPINIONS. 387
your direction is deeired in what manner to proceed, so as most to
tnm out to Mr. Dansey*s aooonnt, that he may recoYor either the
money lent, or what was disbursed on the ship's acoonnt or both ; or
at least possession of tbe whole ship and freight for the wines, or the
wines in lien.
Directiotu. — Mr. D. cannot seenre his interest by any single action.
As to his property of one half the ship, that will be secured by the
action already brought in the Admiralty ; and if bail be not given, he
will be pnt into possession thereof, thongh he must discharge the
master's wages which are dne. Mr. Hucks must, I conceive, account
for what he has received and disbursed in the ship's account^ in case
he should apply to the Court to be put into possession of his half
part
As to the bottomree bond, it will be most advisable for Mr. D.
to bring his action for the same at common law; for the contract
being made at land and before the outset of the ship, the Court will
not be allowed to proceed thereon. When the ship has been arrested
by the mariners for wages and sold by authority of Court, the money
which remains may be decreed towards the satisfaction of such a bond,
but not upon an onginal sute brought upon the bond only, unless
where the mone^- has been lent abroad in cases of necessity. The only
method that I can apprehend Mr. D. should proceed in the Admiralty
Court in relation to the wages is to arrest the same fur freight and
procure the same to be sold by decree of Court.
lai Query. — If the 6d. per meruem interest continues till the payment
of the money borrowed on bottomree, or when does it cease ?
Isi Answer. — The bottomree interest, I conceive, ceases at the time
prefixed for payment thereof, viz. fifteen days after the ship's arrival ;
but upon the master's neglecting to discharge it, Mr. D. may demand
legal interest at the rate of 5 per cent from the time that the other
ceases upon the principal sum of £88.
2nd Query. — If the i;>um lent on bottomree is or is not preferable to
the mariners' wages ?
2nd Answer. — Where the money has been taken up abroad upon
bottomree in cases of necessity, and to preserve the ship itself from
perishing, or for necessaries to subsist the mariners, and to perform
the voyage, such debt is preferable to marinerH' wages. But as this
money was advanced upon the outset of the ship upon the master's
account and to enable him to fit her out, the wages of the mariners
must be preferred.
Srd Query. — Whether the sailors having arrested the ship for their
wages, and the owuer Dansey bailed her, he may not and by what
means put them out of her ?
Srd liwtrer.— Mr. D. may in this case, as owner of the fihip, dis-
2 c 2
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388 CASES AND OPINIONS.
charge the mariners, which must be done in writing, in order to
prevent their having any further demands on the ship for wages ;
and, bail given, the officer of the Admiralty upon giving him posses-
sion may by his direction put the mariners from on board.
4th Query, — Can the Couit on the action in the cause of property
brought by Dansey, though his assignment is only for one half and
the bottomree bond, give him possession of the ^hole?
4th Answer. — Though the action in the cause of property was
against the whole ship, and not as owner of one half, the possession
of such part as he can justify by affidavit to be his property will be
decreed to D. in case bail be not given. But no notice can be taken
of the Bottomree Bond, unless a special action had been brought
thereon against Hnck's moiety, which I am apprehensive could not
be supported, being made on land. Although D. will have posses*
sion of an undivided moiety, it will not thereby give him a title to
the whole, or destroy Huck's property as to one lutlf thereof, but he
may hereafter make his claim thereto.
J. Andrew, 20th October, 1733.
Recapture— Salvage.
Qu. — To whom does the ship and cargo belong, or the proceeds thereof;
and how is it to be recovered ? Qu, — ^Is there any and nhat
salvage due, and to whom, and how to be settled ?
The Pretty Betsy, brigantine, English plantation built, John Lewis
of Virginia, and a subject of Great Britain, sole owner, Wm. TiUidge
master, navigated by eight Englishmen, mounted with three swivel
guns, loaded with twenty-two pipes and one hogshead of Madeira
wine, the property of said Lewis, and twenty pipes, two hogsheads,
and two quarter casks of Madeira belonging to subjects of Great
Britain, sailed from the island of Madeira, a Portugese settlement,
11th March last, bound for Virginia; was 16th April following taken
by a Spanish register ship called the America^ who took out all her
papers, two quarter ca^ks and one hogshead of wine and all the men,
except the mate and one foremastman, and put nine Spaniards on
board. The Pretty Betsy kept company with the America four days,
and the fourth day at night parted company, on which the Spaniards
ordered the mate to navigate the Betsy and steer for Madeira again ;
but in her passage, viz. 16th May, met with an EngL'sh brig, the
St. Oeorge, belonging to Messrs. Whaley & Nicholls of Liverpool,
John Brand waite u»aster, bound to Africa and thence to Antigua, a
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CASES AND OPINIONS. 389
merchHnt ship on trade only, not a priyateer or letter of marque ship ;
that after some resistance by the Spaniards they struck and called for
quarter, and the St, Oeorge put some hands on board the BeUy. The
next morning they met the Dept/ord^ man-of-war. Captain Mostyn,
who Kpoke with the St. Oeorge, and told the master as he had no letter
of marque, he might take the Betsy from him, but would not, and
advised him to carry her to Madeira, not to Antigua, as Brandwaite
first intended, and then gave him a certificate he had met the Pretty
Betsy to show any other commission ship he should meet, and then
left the Betsy in said Brandwaite's custody, who with the St, Oeorge
and Betsy proceeded to Madeira, and arrived there 22nd May. On
7th June said B. with the consent of the Frovidore of said island,
as he pretended, and advice and contrivance of the Bi-itish Consul,
exposed the Betsy and her cargo to public sale, and bought her and
her cargo himself; the vessel under value at 331 milreas and cargo at
1400 mill reags (?), only one Portugese merchant bidding. Then
the St. Oeorge proceeded on her intended voyage to Africa, left the
Betsy at Madeira, which afterwards with said cargo arrived at Liver-
pool, consigned to the owners of the St. Oeorge, but was there claimed
on behalf of the said Mr. Lewis, the owner. Notwithstanding which
the said Whaley proceeded to the public sale of ship and cargo, and
bought the same himself at [£]315, cargo [£]954.
N.B. The Betsy was carried into no port save as above, or any wise
condemned, and the mate constantly on board.
1st Query. — To whom does the Pretty Betsy and cargo, or the proceeds
thereof belong ; and how is the same to be recovered ?
1st Answer. — The property of the ship and cargo, though taken by a
Spanish privateer, was not altered, not having btK'U claimed in an
enemy's port ; and if the sale thereof at Madeira can be made appear
to have been fraudulent, the ship ought to be restored and the cargo
in specie, or the full value thereof, without considering what it was
sold for, deducting salvage. But if the sale* was fair and upon a case
of necessity, which I think can only justify it, the value it was sold
for, salvage deducted, can only be recovered. This is a new case, but
the method I think the best to proceed in is to pray a monition in the
Prize Court against Whaley & Nichob, owners of the St. Oeorge, to
appear and show cause why the ship and cargo should not be restored,
paying salvage ; and in order to lead the monition it may be proper
to exhibit a monition setting forth the property, the capture and
recapture, together with the computed value of the ship and cargo.
2nd Query, — ^Is there any and what salvage from her and her cargo,
and what, how, and by whom to be settled, and to whom due?
2nd Answer, — Salvage is due to the merchant ship who retook her,
although she had not a letter of marque in the same manner and pro-
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890 OASES AND OPINIONS.
portion as if she bad been retaken by a privateer, t.e., one third if she
was in possession of the enemy above forty-eight hours and under
ninety-six, if above ninety-six hours a moiety.
J. Andrew, November 26, 1743.
Dr. Edmunds' Opinion.
1 am of opinion that the ship Betsey and her cargo do still of right
belong to Lewiu and others, British subjects, the original owners of
the same and respectively, notwithstanding the first seizure and re-
capture thereof, and the subsequent sales as stated in this case, and
under the present circumstances as the master of the St. Oearge is bt^yond
sea, and the Betsey was sent home by him with her cargo consigned to
his own owners, who can be afftcted with possession and disposal of
the same, I think it most advisable to take out a monition against
Whaley and Nichols in special, and all others in general, to appear and
shew cause why the said ship and cargo should not be deemed to be
restored to the former owners; and it would be farther proper to
exhibit an attestation of the mate or mariner left on board by the
Spaniards, or both, on their taking out the monition, or at least on
return of the same, giving an account, so feir as they know, of the
original property, voyage, first eeizure, capture, &a
Another Opinion of ihe same Case.
As it is here stated and admitted that the Pretty Betsey had been in
the enemy's posses^tion about a month before she was retaken, I think
the St. Oeorge is by law entitled to a moiety of the value of the ship
and cargo, fur salvage, by reason of the said recapture, notwithstanding
he had no commission or letter of marque or repiisal, and the same
ought properly to be liquidated and recovered against the former
owners of the ship and goods by a decree of the Court of Admiralty
on due proceedings there had, which the recapton aforesaid have
instituted and commenced immediately on the said ships being brought
home. But as they have thought fit to proceed in an arbitrary
manner by such illegal and clandestine sales of bhip and cargo, and
detaining and disposing of tbe same at their pleasure, I apprehend that
when these matters are shewed, the Court will not be inclined to
favour them, but may probably be strict upon them in the point of
expenses and damages and other matters, which will fall under con-
sideration, when the value of the ship and cargo and quantum of the
salvage shall come to be adjudged and fixed.
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CASES AND OPINIONa 391
Wages (1).
Qu, — ^To what time are the several mariners entitled to wages ?
The ship Banger^ Stephen Hoop, master, being bound from London
to Mahone with kings' stones, there to nnliver the same, and then to
proceed to Maryland, and there to take in a cargo of tobacoo for
London, the said master did ship and hire several officers and mariners,
for the said voyage, and on or abont the 16th of March, 1748, pro-
ceeded on her voyage, and arrived at Mahone on June 1 following,
there nnlivered her cargo and proceeded to Maryland in ballast, where
she aiTived in September following, and took in a cargo of tobacoo
and other goods, and proceeded therewith to the port of London. In
course of the homeward bound voyage, viz., on or about 11th of
January, the said ship and cargo were lost at sea and nothing saved.
Ist Query, — ^Under these circumstances to what time are the several
mariners entitled to wages ?
Ist Answer, — ^I am of opinion the mariners are entitled to wages to
the time the cargo was unlivered at Mahone, and no longer, that being
the ship's last unlivering port. Qeor(3B Lee, July 15, 1749.
Salvage.
Qu. — May the owners of the privateer safely discharge the Neptune
on such agreement without a condemnation ? If not, what
steps may be taken to save expense ?
The N^tune, bound from Barbadoes to Lreland with rum, was taken
by a French privateer, and carried into St. Maloes in France, and after
she had been in custody three days was retaken by an English
privateer and carried into Exeter.
The owners of the English privateer and the owners of the Neptune
are ready to agree the salvage amongst themselves ; but the owners
of the privateer are a&aid that in case of such agreement without a
formal condemnation they may be subjected to a prosecution — on
their bail or recognizance given in the usual form to the Crown.
'ist Query. — ^Whether the owners of the privateer may with safety
to themselves discharge the Neptune on such agreement without a
condemnation, and if not, what steps may be taken by all parties to
save expense ?
[(1) There is a copy of this opinion in the Record Office.]
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392 CASES AND OPINIONS.
Ist Answer, — The owners of the privateer oannot, I oonoeive, safely
restore the Neptune without an adjudication in the Admiralty Court;
for by the instructions given to privateers they are required to bring
such ships as they shall seize or take to such port in England, &c.,
as shall be most convenient for them ; and to bring or send some of
the principal of the ship's company to be examined by the Judge or
Commissioners appointed by him upon interrogatories, and likewise
to send the ship's papers upon oath ; and for the performance of the
instructions the security is given. It will, therefore be necessary to
transmit the preparatory examinations and ship's papers, and to take
out a monition as usual, but to lessen the expense they may agree in
acts of Court the property and value of the ship and cargo and the
sum to be paid for salvage, which will save both time and expense of
a Commission of Appraisement, and the allowance to be made, which
otherwise must be settled by the Court, and the Court will decree
restitution accordingly. J. Andrew, June 14, 1745.
Prize.
Opinions as to prisses taken by ships of the East India Company ; whether con-
demnation by a Court of Admiralty is necessary, there being no such Court in the
East Indies ; and as to distribation.
We are of opinion that in case a ship under the company's com-
mission only should make prize of a French ship, a condemnation in
the High Court of Admiralty is necessary ; but that in case of an
Indian ship so taken, no condemnation is necessary, neither treaties
nor usage between the Indians and their enemies requiring it. We
are also of opinion that in neither of these cases the prizes are distri-
butable according to the Act, 29 Qeo. 2, but belong solely to the king.
The statute above mentioned grants the prizes to the captors only in
case of captures made by the king's ships or ships having commissions
or letters of marque from the Admiralty.
C. Pratt, C. York, Jn. BROWNiNa, November 13, 1757.
I concur with the gentlemen in every point except in that which
relates to the capture of an Indian ship, in which case I am of opinion
that such ship taken by a ship under the company's commission only,
must be brought before the Court of Admiralty for adjudication, as
well as a French ship so taken. In both cases the prize which
acquired by the seizure vests in the Crown, if the ship and property-
taken are the property of enemys; but to shew that they are the
property of enemys only, and that no ally or neuter hath any share
or interest therein, the maritime law of nations universally received
requires a judicial determination in the Court of Admiralty.
Geo. Hay, Nov. 16, 1767.
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CASES AND OPINIONS. 393
The following Gases and Opinions are contained in a bundle of papers transmitted
to the Becord Office from the Admiralty Registry marked ** 8 a." The handle con-
tains, together with several ecclesiastical and testamentary casee^ some of the
Admiralty oases contained in Sir W. Barrell*s collection and printed aboye.
Co-owners.
About the month of June, 1742, several merchants in London com-
missioned James Boyden, merchant at Philadelphia, for the building
of a ship to be called the Docksey, whereof John Grace was appointed
conmiander.
That in pursuance of the orders received Boyden builds a ship, but
not being in cash to the amount of the costs in building said ship by
£200, Boyden draws bills on the owners for the said £200, and retains
the grand bill of sale by way of security untQ the said £200 should
be paid.
That the ship being then finished the said captain sailed from
thence, according to orders, for Jamaica, where he took in a freight
for London, and proceeded accordingly, and arrived in London about
May last.
That the captain on his arrival in London received the disagree-
able news that three of his owners were bankrupts, one of which was
owner of six sixteenths ; but he, as he pretends, assigned over his
interest in the said ship some short time before he became a bank-
rupt, and for a valuable consideration. The other two bankrupts
were owners of a sixteenth each, and no assignees under one of the
said commissions has yet nor will be chosen these two months.
That the majority of the owners insist upon selling the whole ship,
but the captain being an owner himself, and as it will be a manifest
loss to him, don't choose to part with his interest ; and there being
no assignees chosen under one of the said commissions, it is appre-
hended no consent can be given as to his share; besides, imother
owner or two is against parting with theirs.
That the captain has pretty nearly collected in the whole freight,
and has paid and discharged all bills, and likewise paid Boyden's
drafts for the £200 ; but it is apprehended that Boyden has not yet
sent over the grand bill of sale, and the captain will have sufficient
overplus in his hands to fit the said ship out for another voyage.
That as the owners cannot agree either about selling or fitting out
the said ship, and the captain being an owner himself, and it tending
greatly to the detriment and loss of the owners and captain that the
said ship should lie by :
Query. — Can he with safety, out of the cash in hand, fit out the said
ship for another voyage ? and can any of the owners by any proceed-
ings to be had in the Commons or elsewhere stop the said ship or
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394 CASES AND OPINIONS.
dispossess the said oaptain from the command thereof, as he is a part
owner ? And what will be most advisable for the captain to do under
the circumstances of the case ?
i Armoer, — I am of opinion that the captain cannot safely fit out the
ship with the cash in his hands, which belongs to the several owners
in proportion to their respective shares in the ship; and as the
majority of the owners are against the ship going out another voyage,
and are for selling her, if the captain should carry her out without
their consent, I conceive they will have an action against him, or
ii^fty* ^y warrant from the Admiralty Court, arrest the ship, in order
to stop her going to sea. I am of opinion the majority of the owners
in value have a right to appoint a master, and may displace him,
notwithstanding he is a part owner. Upon the whole I think it will
be most advisable to have the ship appraised and sold as soon as
can conveniently be done.
N.B. One of the owners has transferred part of his interest to a
foreigner, by which means he says he can stop the ship.
Qtiery, — ^Whether such person, being a part owner, can stop the
said ship's voyage, in case it be advisable for the captain to fit
her out ?
Answer. — I dou't know any privilege a foreigner has in this matter
more than an Englishman, and I think his being a part owner does
not at all vary the case.
Geo. Lbb, D. C, Sept. 20th, 1744.
Wages.
The ship Dragon (Daniel Nicholas, master), belonging to the port of
London, and intended for a voyage from that port with a freight of
com to be delivered at Cadiz, and on her delivering the same there
to proceed thence to New York, and there to take in a cargo tor
Jamaica, where she was to deliver the same, and there to take in rum
and sugar and to return with the same to London, and having got her
complement of hands at London, proceeded thence with her said
lading of com some time in the month of September last, and arrived
at Cadiz some time about the latter end of October following, where
she delivered her said cargo of com, and proceeding thence on her
said intended voyage with little else besides her ballast, met with
very bad weather, which obliged the captain and crew on board to cut
away her mizen and main-masts, and, the bad weather still continuing,
they put into Fayal, one of the Western Islands, in a very shattered
condition, having nothing but her foremast standing, where, it not
being possible to meet with materials to put her in a condition to
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CASES AND OPINIONS. 395
proceed on her intended voyage, after a survej taken (at the request
of the officers and mariners, the captain excepted), the said ship was
condemned and sold some time in the month of February.
Query. — As the said ship could make no freight from Cadiz l»y
reason of the circumstances above mentioned, for how long time will
the mariners who were entered on board her for the said voyage be
entitled to their wages, she having no goods on board her when she
left Cadiz except two bales of canvas and 8000 wooden hoops belon^^-
ing to the owners and intended to be used at Jamaica in the ship's
service ?
Answer. — I am of opinion the mariners are entitled to wages to the
time the cargo of com was nnlivered at Cadiz, and no longer.
Geo. Lee, April 18th, 1751.
Dr. PauTa Opinion an the same Cases.
Fj eight is the mother of wages to mariners. Where a ship makes
no port of delivery she earns nothing to pay the sailo s ; but if the
ship carried away merchandize to the last place, Fayal, where she was
sold, that will justify a demand for wages without dispute.
If the mariners, observing that the ship was in a shattered con-
dition, having nothing standing but a foremast, and they by their
diligence and skill in navigation, after the suffering by bad and tem-
pestuous weather, carried the ship into Fayal, and thereby saved
stock and block, in such case I am of opinion that a Court of Admiralty
will decree some wages ; though according to strict law no wages are
due without ireight has been made.
Therefore upon the entire case I would advise the payment of
wages rather than enter into an expensive suit at law.
O. Paul, Sept. 4th, 1751.
Wages.
The case states at considerablo length the facts as to the aeaman whose wages are
in question having fallen sick on the voyage. The opinion is as follows: —
1st Query, — To what time is John Slaughter intitled to wages?
Answer. — I know no instance where it has l»een determined that a
mariner, belonging to a ship, who dies, hath a right to wages to the
time of his death, whether the ship make a freight or not. But I
apprehend that by the maritime law, which is favorable to sailors, if
one of them falls sick whilst in the service of the ship, and be left on
shore, if he recovers his health he is to be paid his wages deducting
the charges the master has been at for him, as much as if he had
served the whole voyage ; and in case of his death his wages are to
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396 CASES AND OPINIONS.
be paid to liis executors or administrators. But then thej are to be
ooDsidered in all respects upon the same footing with the sailors on
bocurd the ship, and are not to have wages unless the crew be likewise
intitled, and therefore, and as no wages at all are due in this case to
the crew, the ship being totally lost, I am iuclinable to think that
Slaughter's representatives are only intitled to wages to the time the
freight became due at Jamaica, and that the accident of Slaughter's
death will not intitle them even to the wages for the time he li\ed
afterwards, while the ship waited for the cargo, the ship leaving with
no freight.
2nd Query, — Is it by any particular statute or by the maritime law,
and how, that a ship is obliged to have a doctor on board ? And is
it confined to the ships of any particular burthen and number of men ?
And is a captain or owners at all times obliged to pay out of their
own pockets for the care of their mariners during their service in the
ship (not being the foul disease)? If yes, is such mariner iutitled to
wages during his incapacity, even if the captain is obliged to hire
another in his room ? The burthen of the ship in question is 175 tons,
and she had 13 men.
Armoer.-^li a mariner falls so sick as not to be able to travel, he
ought to be put on shuar and maintained in like manner as if he was
on ship board and attended by a boy or nurse and accommodated with
humanity. But the master is not, I conceive, bound to allow him
better diet, unless it be at the mariner's cost and charges. And I
know of no law received in this country whereby merchant ships of
any burthen are obliged to have an apothecary or surgeon on board,
or that subjects a ship to the charge of curing a sick mariner, nnless
he be hurt in the service of the ship, in which case he is to be t%ken
care of at the ship's expense. But he will, I apprehend, be intitled
to wages deducting the charges the master hath been at for him as in
the answer to the first quaere, whether the master hired another
mariner or not.
Ed. Simpson, 12th Feb., 1766.
Wages.
The ship Elizabeth sailed from the port of Exeter about ten months
since, bound out on freight to Newfoundland, having about ten tons
of bread on board, and was first to touch at St. Martins' in France, to
take in salt, where she took in about 140 tons; and with this bread
and salt proceeded to Newfoundland. On her arrival there the
master landed about fifteen tons of salt, but the next day, and be-
fore he could land any more, a violent storm arose and drove the ship
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CASES AND OPlNIONa ' 397
upon the rooks, where she went all to pieoes, bo that the remainder
of the salt, being 125 tons, was intirely lost. Some time after some
of the wreck and rigging of the ship were saved and were brought
on shore, and sold for about £40, clear of charges. A good deal of
bread was saved also, but, it being greatly damaged, no freight was
received for it. But the bread, nothwithstanding the damage, pro-
duced about £30 ; so that all the freight was lost save the freight of
the fifteen tons so landed on the ship's arrival, and which amounted
only to £7 10«. ; and the master and owners insist that as all the
freight except the £7 10«. was lost, the mariner's wages (if any are
due) can only be recoverable in proportion to that sum, being the
only freight leceived or recoverable.
Query. — ^Whether any wages are due to the mariners, and if any,
whether they can recover the full wages without any regard had to
this loss, or only by way of apportionment as aforesaid. And, if the
latter, by what rules must such apportionment be made ?
Answer, — I am of opinion that wages are due to the mariners, but
they are not intitled to their full wages. Each man must bear hiB
share in the loss, but by a deduction from his wages. A calculation
must be made of the whole 9um liable to the payment of wages,
then it will appear how great the deficiency is ; viz. a third or fourth,
&c., which must be deducted from each man's share.
2nd Query. — Whether the materials which amounted to £40 clear,
and the bread which amounted to £30 clear, as above stated, and any
and what part of it, must not in the first place be applied towards
payment of master and men their wages, as the freight made is not
sufdcient so to do, and the overplus, if any, then go to the owners?
And whether the master and men can't bring their action in the
Court of Admiralty for recovery of their wages due and time (?) to
the day she was lost ? And can the Court of King's Bench grant
prohibition to stop such proceedings before the Court of Admiralty ?
Ansujer. — The money gained by law is certainly liable to pay the
wages. And I think in equity the Court of Admiralty would deter-
mine BO in relation to the money gained by the sale of the wreck and
bread. I am of opinion the mariners may bring their action for their
full wages, but on proof of the above named circumstances abatement
will be made. I think the Court of Admiralty has jurisdiction in •
this case, and the Court of King's Bench will not prohibit
Chas. Pinfold, D.C, May 13, 1752.
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398 CASES AND OPINIONS.
Hostage.
The ship Charming Nancy (whereof James Fannisen now is or lately
was master) being taken as prize by the French, was with her cargo
ransomed by the master for the sum of £ ; and Francis Bnrt and
one of the crew, whose name is unknown, consented to go as hostages
for the payment of the said ransom ; in consequence whereof the said
ship and cargo were released. The ship afterwards arrived at her
destined port, and has there nnlivered part of her cargo, but the said
ransom has not been paid, and the said hostages still remain prisoners.
A suit is intended to be commenced in the Court of Admiralty by the
relations of Burt to compell the payment of the said ransom, and
thereby procure the release of the hostages, and it is uncertain whether
the ship, and that part of the cargo which remains unlivered may be
sufficient to answer the said ransom.
Qttcry.— Have not Burt's relations a right to bring an action against
the master, for the performance of whose contract the hostages be-
came bound, as we]l [as] against the ship and goods, so that they
may, if necessary, proceed against both ? And can a warrant on such
action be refused? And, as the name of the other hostage is not at
present known, may not such action be entered in the name of Burt
and company as hostages ?
Answer. — I do not know any instance of a warrant issuing against
the master in such a case. The ship and goods are in the first place
answerable for the redemption of a hostage. These may be arrested,
and the suit may be brought by Burt's relations on behalf of both the
hostages, naming the one and describing the other of name at present
unknown. G. Hay, January 24, 1761.
In the first instance I think you cannot proceed against the master.
If the ship and goods will not produce the sum stipulated for the
ransom, and you can show that the master fraudulently ransomed, I
think he may then be prosecuted on behalf of the hostages.
Prize — Eansom Bill.
The ship Patrixent, Hannibal Lush, master, was taken by an
American privateer, and was ransomed for £5600 sterling, and an
hostage delivered, who was carried to America. For the above sum
the captain of the ransomed ship drew a bill upon Messrs. John
Glassford & Co., merchants in Glasgow, a copy of which is under-
written, who are owners of the vessel.
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CASES AND OPINIONS. 399
The ranflom bill was sent to Amsterdam, and from thence remitted
to merchants in London, to recover the value of it When it was
first presented to the gentlemen npon whom it was drawn, thej
offered £1000, part of it, as the valne of the ship ; but it not being
thought prudent to receive a part of the money, their offer was then
refused : since which the said gentlemen, together with the owners of
the cargo, have refused to pay the bill or any part of it
Your opinion is desired whether the holder of this ransom bill can
maintain a suit in the Admiralty Court against the owners of the ship
and cargo for the recovery of the sum for whicdi eadh bill was given ?
And whether such suit must be brought against every individual
owner of the ship and cargo?
Copy of the BilL
£5500 On board the schooner Banna.
July 26, 1779.
At ninety days' sight my second bill of exchange, first and third of
same tenor not paid, pay to Eichard Jackson or order the sum of five
thousand five hundred pounds sterling, for the ransom of the ship
Patrixent and her cargo. Hannibal Lush.
To Messrs. John Glassford & Co.,
Merchants, Glasgow.
Antwer, — ^I think that the owner of this ransom bill may maintain
a suit in the Court of Admiralty for the recovery of the sum for which
the bill was given; but I apprehend they must make it appear that
the hostage is not at libei-ty, if he is living, before they can obtain
payment of the money. The proper way of commencing such a suit
would be by arresting the ransomed ship with the cargo on board.
But if that cannot be done, I think it will be sufficient to bring the
suit against Lush, the master, who drew the bill, and Messrs. Glassford
& Co., the owners of the vessel, upon whom it is drawn.
Wm. Wynnb, Doctors' Commons, July 25th, 1781.
1781, September Ist — A warrant was extracted under the great seal
of the High Court of Admiralty against John Glassford, one of the
partners in the house of trade known by the stile or firm of John
Glassford & Co. of Glasgow, merchants and co-partners, the owners of
the ship called the PairixerU (whereof Hannibal Lush was master),
her tackle, apparel, and furniture and the cargo therein laden by (?)
Joseph Grote and Conrad Harksen (?) of London, merchants, the
legal holders of the bill of exchange, for the ransom or redemption of
the said ship and her cargo, &o. And a warrant in the like case was
also extracted against Hannibal Lush, the master. These warrants
have been sent to Mr. Robertson, an eminent writer at Edinburgh,
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400 CASES AND OPINIONS.
who declines executing them, because the Scotch lawyers are of opinion
that the High Court of Admiralty of England (as the seal of th^ Court
expresses it), or of Great Britain (as the Judge now describes it) hath,
not any jurisdiction in Scotland.
Query, — Can Lush, the master, and Glassford, the owner of the
Pairixenij be legally arrested in Scotland by virtue of the aforesaid
warrants ?
Answer. — It was determined by the House of Lords in the case of
Jackson d OosUing v. Monro^ 8th March, 1779, upon an appeal £rom the
Court of Session in Scotland, that the Judge of the High Court of
Admiralty has power to proceed to condemnation of a prize which has
been carried into a port in Scotland, and to issue a commission of
appraisement thereof, and cause the same to be executed in Scotland,
which the Judge of the Admiralty Court in Scotland had in that case
obstructed by issuing his warrant to arrest the ship and cargo, and
declaring all the proceedings in the High Court of Admiralty to be
null and void ; and those proceedings of the Judge of the Admiralty
in Scotland had been confirmed upon an appeal from them to the
Lords of Session. This is a dii-ect and complete authority that the
jurisdiction and process of the High Court of Admiralty extends to
S<;otland in causes of prize ; and I conceive that its jurisdiction is
equally extensive in causes of instance. But it is enacted by the 19th
of the Articles of Union of the two Kingdoms "that the Court of
Admiralty now efitablished in Scotland be continued, and that there
be always continued in Scotland a Court of Admiralty such as ia
England for determining all maritime causes relating to private rights
in Scotland competent to the jurisdiction of Admiiulty." There can
be no doubt, therefore, that as both the owners and master of the
ransomed ship (as I understand) reside in Scotland, a suit might be
instituted in the Admiralty Court in Scotland for the recovery of the
ransom. And as the holders of the bill would in all probability meet
with a very strong opposition, as well from the owners and master of
the ship as from the Judge and oflScers of the Admiralty Court in
Scotland, if they should persist in entering {J) an appearance in the
High Court of Admiralty, and this question as to the jurisdiction
might engage them in a litigation of great length and expense, it
might be worth their consideration whether it would not be more
prudent for them to proceed in the Admiralty Court in Scotland than
in the High Court of Admiralty.
Wm. Wynne, Doctors' Commons, Sept. 13th, 1781.
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CASES AND OPINIONS. 401
Prize.
Several ships having ohtained Dutdi passes in Holland in pursu-
ance of the Treaty Marine in 1674 have sailed directly to some French
port, and then for many mooths past have traded and are now trading
from port to port belonging to tiie French King and Ring of Spain,
loaded, as supposed, with enemies' goods ; and, to countenance this
trade and protect them from the English, the ships sail under a Dutch
master and Dutch colours, have their Dutch passes on board, and
fictitious bills of lading for the goods as if bound to Holland. Many
of these Dutch masters are not natives of Holland, but French, Irish,
and of other nations, made burghers by the States of Holland, and
their crews for the greatest part French.
Query. — If advisable for an English privateer, in case he meet with
a ship under these circumstances, to bring her into port and proceed to
the adjudging and condemning ship and goods for prize ? Is either
ship or goods, in this case, liable to be adjudged for prize ; or will not
the privateer be liable for an unjust detention of the said ship and
goods in breach of the Treaty Marine in 1674 ?
Anatoer, — I am of opinion an English privateer may safely seize a
Dutch ship under the circumstances above stated, and will not be
liable to costs and damages for such seizure. I conceive the French
cargo will be condemned, notwithstanding the Treaty of 1674; but
the ship, if it belongs to Dutch owners, will probably be restored. It
has been several times determined in the Admiralty Court that a
Dutcdi ship carrying a cargo of enemy's goods upon freight from one
port to another of the enemy is not priviledged by the said Treaty
of 1674, and cannot protect the enemy's goods, and the goods have
accordingly in such cases been condemned as lawful prize, but the
ships have been restored.
Geo. Lee, Jan 7th, 1746.
2 D
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INDEX.
ACT OP PARLIAMBNT. See Statutes.
oonstruction of, commoa law judges calledin, 248
ACTION AT LAW,
monition refused where th«% is, no double remedy, 243
rule of division of loss in case of collision where one ship sues at law and the
other in Admiralty, 332
ACTION IN PERSONAM
tacked to action in rem, 266, 267
not permitted to be tacked to action in rem, 295
opinion as to, for carrying ofif rigging, &c., 385
by cargo owner against master of carrying ship, 310
shipowner against master and mate, 260
seaman against master for wages, 132, 318
for wages and damages for wrongful dismissal, 20
for wages and damages, 287, 311, ^-usage), 315
wages suits, 24, 86, 132, 133
master against pilot, 307
against ship and master, for collision, 267, 285, 298
against master of wrong-^oing ship, 269, 298
for damages, 287, 303, 312
for wrongful detention of ships' gear, 302
ADMIRAL,
right of, to share in prizes, 158
opinion as to, 364
ADMIRALTY, COURT OP,
jurisdiction o£ See Jubisdiotion.
* prohibited. See Pbohibitiok.
contempt, how punished, 80
conflict between Admiralty Court and Sheriff of Surrey, 252
criminal jurisdiction of, 123, 233, 255
procedure in criminal matters, formerly according to civil law, 123
Admiralty of the Cinque Ports, jurisdiction of, 316
misdemeanours by law of, 123
power to fine, 67, 86
power to correct fishermen, 240, 261
power to execute sentence of Irish Admiralty, 253
exclusive jurisdiction in possession exists, 112, 114
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404 INDEX.
AFFIDAVIT
taken before Bailiff of Leith admitted, 124
ALLEGATION,
petition as to admission of, 13
admission of, about a bottomry bond, I
ANCHOK,
damage by, to another ship, 243, 284
salvage of, 281
APPEAL,
proceedings on appeal from Vice Admiralty, 88
practice as to opening an appeal, which party begins, 101
security for costs of, 86
none from Admiralty Court except on a deGnitive sentence, 101
person sued for wages as owner cannot appeal on question of liability after
admitting ownership, 99, 102
desertion of, 3, 167
APPRENTICE
forfi its wages by desertion, 20
ARREST,
breaking, is contempt, 14, 80
of owner in wages suit, 101
ASSIGNMENT
of lien for wages, 62
AVERAGE,
opinion as to, 382
division of loss in cases of collision, by wny of, 235
titles of average suits in Admiralty Court, 249, 250
BAIL,
power of Del^ates as to enforcing, 87
excessive, will be moderated, 14
fresh bail to be given on appeal, 86
whether bail discharged by bankruptcy of part owner, 118
whether bail should be given or appearance entered under protest when wrwig
person sued as owner, 118
in double value, possession suit, 279, 310
BANKRUPT
owner cannot intervene in bottomry suit, 122
bail, whether he can be heard, 118
BILL OF LADING (1650), 240
BOTTOMRY BOND,
early suit (1733), 314
given by a minor, 88
nature of, 138
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INDEX. 405
BOTTOMRY BO^'D-~continuetL
iBSuranoe in case of, 94, 337
priorities of bonds of different dates, 97, 124, 134, 137
suits as to, 88, 97, 124, 134, 326, 330, 333, 335, 336, 338
whether shipowner can give, 135, 330
Scotch law as to, 185
if by master, must be given in foreign port, 135-138
necessity the foundation of, 2, 95
opinion as to effect of foreign sentence, 383
collateral security by bills of exchange, 96
lender need not see to expenditure of money lent, 94
bottomry bond given to cargo-owner for amount raised by sale of cargo in
order to repair ship, 326
bond by British owner given in England, 330
laches in enforcing, bars the right, 336
wages preferred to, 331, 336
cost of insurance may be included in, 337
validity of bond not expressed to bind the ship, 333
whether payable if ship never arrives at port named, 335
liability of cargo put on board after execution of bond, 338
breach of, ship sailing to port not named in bond, (opinion), 375
opinion as to preference of bottomry to wages, 387
CAPITULATION
of the Havannahy 5, 47, 161
of Manilla, 162
CARGO,
decree against, in collision suit, 313
suit by owner of, against nuuiter of carrying ship, 310
suit as to ownership^of, 279, 306
full damages for cargo lost in collision by fault of both ships, 282
bottomry, liability of cargo put on board after execution of bond, 338
OASES AND OPINIONS, 351, seq.
CHANCERY, COURT OP,
jurisdiction in case of mcH-t^mge of ship, 138
in case of disputed ownership, 152
to obtain possession of ship. 111, 112
CHARGE TO JURY
by Sir G. Hay, 123
by Sir L. Jenkins, 253
CINQUE PORTS, LORD WARDEN OF,
jurisdiction of, 316
COCKET,
forfeiture for erasure of, 108
COLLISION
in Thames, question as to jurisdiction, 130, 334
personal actions against master, 269, 281, 295, 298, 299, 319, 321
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406 INDEX.
CX)LLISION— confonticd.
decree condemning cargo of wrong-doing ship («emWfl), 313
division of loss between skips and cargoes by way of average, 235
damage found to be wilful, 305
one ship in fault, full damages decreed, 254, 263, 275, 305, 313, 323, 325
suit dismissed, negligence not proved, 275, 308, 315, 321, 322
suit dismissed without costs, no &ult in either ship, 322, 331
master suing on behalf of himself and owners, 321
between a convoy and one of her fleet, 324
rule as to division of loss applied, 235, 251, 264, 270, 280, 282, 288, 290,
294, 295, 328, 332, 337, 339
COLOURS
to be worn by merchant ships, 65
regulations as to, 65
illegal, action for wearing, 64
French subject sailing under Spanish flag (opinion on prize case), 360
COMMISSION
for examination of witnesses, 53
CONSUL
at enemies' port, IGO
CONTEMPT OF COURT,
power of Admiralty Court to arrest and fine for, 80
breaking arrest, 14, 80
CONTRABAND, 159
opinioDS as to what is, 377
CONVOY,
collision with, 324
CXD-OWNERS,
opinion as to rights of, 393
CORRECTION
for preventing impressment of seamen, opinions as to proceedings, 36«'?, 34>7
of fishermen, 240, 261
COSTS,
security for costs of appeal, 86
practice as to, on appeal, 62
in collision suits, 322, 331. See Colusion.
CUSTOM,
liability of wrecked goods to, 353
DAMAGES. iSce Collision.
for ill usage, 315
personal, suits, 133, 287, 302, 303, 307, 311, 312, 315
by anchor of another ship, 243, 284
for wrongful seizure, 300
for detention of «hip*s masts and g^ar, 302, 385
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INDEX. 407
DANGER OF THE SEA,
meaning of the turn in mariner's oontraoti 24
DEFAULTS
in bottomry suit, 129
proceedings as to, 79
DELEGATEa See Appeal.
power to enforce bail by exoommuDication, 87
DESERTION,
definition of, 13
of appeal, 3
forfeiture of apprentice's wages by, 20
DIVISION OF LOSS,
rule as to, in case of collision, 235, 251, 264, 270, 280, 282, 288, 290, 294,
296, 328, 332, 337, 339
fiinlt greater in one ship than the other, 332
by way <^ average contribution amongst cargo owners, 235
loss on ships divided, full damages on cargo, 282
question as to application of rule, where negligence not proved, 308
where one ship sues at law and the other in Admiralty, 332
where no n^Iigeuce in either ship, 332
DOUBLE REMEDY,
monition refused, where action at law instituted, 243
ELIZABETH, QUEEN,
letter of, as to jurisdiction of Admiralty Courts !
EQUITY. /8^ Chafckbt, CouBT OF.
administered by Admiralty Court, 138
EVIDENCE
in Admiralty, what is, 126
declaration of living person admitted, 15
by judge, 44
taken in foreign Court, good in Admiralty, 125
letters not verified by afiBdavit, 124
EXCOMMUNICATION,
enforcing of bail by, 87
EXAMINATION OF WITNESSES,
commission for, 53
in cases of prize or forfeiture, 60
FINE,
power of Admiralty Court to, 67, 85
FISHERMEN,
jurisdiction of Admiralty Court over, 240, 261
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408 INDEX.
FLAG. /SbcCoLouBs.
jurisdiction of Admiralty Court ibr ofiences to, 64, 258
of truce, 165
French subject sailing under Spanish flag, opinion as to legality of captnrc,
360
FOREIGN SENTENCE,
opinion as to effect of, 383, 385
FOREIGN SHIP,
jurisdiction of Admiralty Court for damage by, in Thames, 130
FORFEITURE
causes, 30, 102, 108
FREIGHT,
suit as to, 278
GODOLPHIN, DR.,
letters patent to, 340
HANSEATIC LAWS,
cited, 116
HAVANNAH,
capitulation of, causes arising out of, 6, 47, 161
HOSTAGE,
opinion as to liability for ransom of, 398
IMPORTATION,
meaning of the terra, 30, 53
IMPRESSMENT,
opinions as to proceedings against persons preventing, 365, 367
IN REM, ACTION,
ship is the principal in, 121
tacked to action in personam, 266, 267
INFANT,
bottomry bond by, 88
INJURY, PERSONAL,
action for damages, 287, 307, 312, 315
INSURANCE,
in case of bottomry, 128, 337
IRELAND, ADMIRALTY OF,
power of English Admiralty to execute sentence of Irish Admiralty, 263
JOINT OAPTtTRE,
prize cases 167-172
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INDEX. 409
JURISDICTION OP ADMIRALTY COURT,
tempore Queea Elizalx'th and King James I., 232, 233
in case of ship on stocks, prize, 5
for bailding and repairing ship at Woolwich, 7
exclusive, in popsesoion suits, 118, 148, 152
in criminal matters, 123, 233, 255
over fishermen, 240, 241, 261
conflict with sheriff of Surrey, 252
illegal colours, 64, 258
for preventing impressment of seamen (opinions), 365, 367
no jurisdiction in case of illegal im^iortation, 319
not original, 8
opinion as to distribution of prize amongst partners, 381
none for master's wages, 8
where no objection taken by parties, 137
collision in body of county, 130
none for mortgage of ship, 138
or where ownership in question, 152
where master claims for wages paid by himself, 76
opinion as to jurisdiction of Judge of English Admiralty in Scotland, 400
of Admiralty of Cinque Ports, 316
letters patent to Judges of the Admiralty, 340, 345
power of English Admiralty to execute sentence of Irish Admiralty, 253
JURY,
charge to by Sir G. Hay, 123
by Sir Leoline Jenkins, 253
LETTERS PATENT,
to Dr. Godolphin, 340
to Sir Thomas Salusbury, 346
LIEN, PRIORITIES OF,
material man preferred to bottomry bond-holder, 259
wages preferred to damage lien, 284
wages in subsequent preferred to wages in prior voyage, 288
for wages, assignment of, 76
for wages, where collision by fault of ship sued, 284
damage lien for collision, decree against cargo of wrong-doing ship (scmble),
313
LIMITATION, STATUTES OF,
no bar to action for wages, 320
LORD OF MANOR,
claim to wreck by, opinion as to, 375
MANILA,
capitulation of, 162
MARINERS,
wages suits : See Wages.
contract on credit of the ship, 79
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410 INDEX.
UAHl'SEB.S— continued.
favoured in the Court of Admiralty, 142
whether they must discharge cargo, 314
opinion as to right to wages of mariner who fiallB sick, 396
MARSHAL,
insulting him, 14, 80
MASTER,
may he removed at end of voyage without cause shewn, 116
may he dispossessed notwithstanding dishursements made and owin^ 117
power of, to sell cargo for repair of ship, 89
majority of part owners may remove master, 117
can hind owner hy his acts during the voyage only, 258
power to remove, 110
though part-owner, 117
contracts to serve pn owners' not ships' credit, 79
suing for seamen's wages paid hy him, 62, 76
cannot sue in Admiralty for his wages, 8, 79
suits hy master for wages, 252, 314
personal action against, for collision, 319, 321
MASTS,
damages for wrongful seizure of, 301
MATERIAL MAN,
his right to sue in Admiralty, 7, 135
prohihited from proceeding in Admiralty, 247, 259
preferred to hottomry-hondholder, 259
suit hy, 284
allowed to proceed against proceeds of ship in the registry, 334
MONEY
in the Registry, suit against, 76, 158, 334
suhsistence money decreed to seaman, 23
MONITION,
perishahle, 124
refused, where action at law instituted, 243
MONTE CHRlSTf,
ships from, prize cases, 228, 229
MORTGAGE
of ship, jurisdiction in case of, 138
NECESSARIES,
supplied hefore ship huilt, 125
supplied on land, 126
right to sue for, in Admiralty, 7, 126
NECESSITY,
element of, in hottomry, 2, 95, 124, 134
NEUTRAL PORT,
prize cases, 175
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INI^X. 411
NEUTRAL PROPERTY,
prize cases, 175-182
opinion as to, 356
OPINIONS, 351, «eg.
ORDER IN COUNCIL,
as to colours to be worn, 64
proof of, 68
OWNER. iS^ Part-owners.
Ixmnd by acts of master during the voyage, 114
Admiralty has no juriddiction where ownership is disputed, 152
sued for wages, 99, 2G9
liability for repairs, opinion as to, 373
PAPERS,
fialse and colourable, 188
PART-OWNERS,
majority taking possession of the ship must give security, 1 14
decree against, for proportionate part of wages, 269
damages, 297
majority may remove master, 117
PASS, 183
PERSONAL ACllON. See Action in Personam.
PIRACY
defined by Sir L. Jenkins, 256
POLICY OP INSURANCE,
early forms of, 267, 310
POSSESSION,
suits, 110, 118, 145, 148, 279
no prohibition to Court of Admiralty in, 118
Admiralty Court will not try questions of ownership, 152
opinion as to right of majority in value of owners to, 393
PRACTICE
in criminal matters, 123
on appeal, as to right to open, 101
no appeal except from definitive sentence, 101
PRELIMINARIES OF PEACE, -
prize case as to, 183
PRIZE CAUSES,
Africa, 155
America, French Settlements, 155
Admiral's right to share in prize, 158, 364
contraband, 159, 160
Consul at enemies' port, 160
capitulation of Havannah, 5, 47, 161
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412 INDEX.
PUJZE CAUSES— continued.
capitulation of Manilla, 162
East India goods, 164
flag of truce, 165
joint capture, 167
neutral port, 175
neutral property, 175-182
neutral property being produce of enemy's country, (opinion), 356
West India produce, 204-209
West Indies, French settlements, 210-221
„ neutral islands, 223-227
pass, 185
preliminaries of peace, 185
prize cause proceedings, 184-197
Monte Christi, ships from, 228, 229
false papers, 188
property, 197
recapture, 197
ship timber, 199
restitution decreed, at what time value to be estimated, 351
PRIZE, OPINIONS AS TO,
Frenchman sailing under foreign flag, 360
claim by owners after condemnation, 362
ship taken within limits of foreign port, 355
liability of insurers to pay ransom, 357
distribution of prize, 359
right to share, 370
what is contraband, 377
whether jurisdiction in Admiralty or in Chancery to decide question as to
distribution amongst partners in privateering adventure, 381
adopted French ships, 382
recapture, salvage, 388, 391
condemnation, 391, 392
seizure of Dutch ships with enemies* goods, 401
PROCEEDS OF SHIP,
action against, by master for wages paid by himself, 158
„ by materialman, 334
PROCEEDING. See Pbactiob.
proceedings in poenam to compel appearance, 80
in criminal matters, formerly according to civil law, 123
prize cause, 184-197
PROHIBITION,
whether Admiralty Court giving possession of ship to majurity of part-owners
is liable to, 116, 149, 152
sent in Micha^hnas Term 1683 .. 260
in possession suit, 11*5
PROl'EST
appearance under protest of person wrongly sued as owner in wagej suit, 99,
108
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INDEX. 413
RANSOM,
opiQion as to liability for ransom of hostage, 398
right of holders of ransom bill to sue in Sootch Admiralty Court, 399
RECAPTURE, 197, 388
RECORDS OP THE HIGH COURT OF ADMIRALTY,
note as to, 231
extracts from, 231-^50
REPAIRS,
opiuioD 9a to liability for, 373
RESPONDENTIA BOND, 96
RESTITUTION,
at what time value of ship to be estimated, 351
RUSTICUM JUDICIUM. ^8^ Division op Loss.
SALUSBURY, SIR THOMAS,
letters patent to, 345
SALVAGE. See Pbizb Cases.
titles of suits, 281, 322
opinion as to right to, 381
of an anchor, 281
SEAL
general order as to si^aling warrants, 303
of High Court of Admiralty, 400
SEAMEN. See Mariners.
SEIZURE,
damages for wrongful, 300
where master is a foreigner, 354
SENTENCE,
opinions as to effect of foreign, 383, 385
execution of sentence of First Admiralty, 253
SHERIFF,
conflict with Sheriff of Surrey, 252
SHIP,
proceeds of sale of, in registry, action against, 76, 158, 334
on the stocks, whether it is a ship, 5, 47
liability to arrest, for wages earned on board tender, 354
foreign, action against for damage in the body of a county, 130
timber, 199
opinion as to effect of foreign sentence condemning, 303
SHIPOWNER. See Owner, Part-owners.
SHIPWRIGHT. See Material-man.
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^ ^ . • ■
414- n^, ' .. INDEX.
SMUGGtlNd tASEB, .^, A5. ' .
SPAIN, * . ' . ' .
prise caiwes^ 300
STAJUTES •
i>f Limit!! tion, 320 '* .
cotnmon laiw judgts GiUod in to interpret, 248
• 13Rie. II. 8. 1,(5.5.. 116. "
15 file. II. c. 3.. 116 ,
2 Hen. I V.V 11.. 116
27 Hen. Vin.a ..123
1 Eliz.c. 11..37, 43
12Car. ILc. 4..37
13 & 14 Car. 11. c. ..109
15 Car, n. (Nav. Act), 40
IJacII.o. 3..40
' IJac. II.C.4..40
6Wm.&M. C.7..43
6&7Wm.&M.c. 7..43
9&10Wm. &M.C. 13..43
7&8 Wm. 1II.C.22..36
5 Geo. I.e. ..43
2 Geo. II. c3&.. 132
5Geo. II. C11..40
6Geo. II.c. 30..275
6Geo. II.c. 3..36
7 Geo. II. 0.30.. 43
11 Geo. II. 0.30. .43
26 Geo. II. c. 32. .36
31Geo. II. c. 10..88
32 Geo. II. 0.25. .88
83Geo. II.c. 1Q..88
2Ge6. Iir.c. 16..88
5 Geo. III.. 0.11.. 40
SUBSISTENCE MONEY, 23
SWEDEN
prize causes, 203
TIMBER, SHIP, 199
TRINITY MASTERS,
difference of opinion between, 323, 329
TRUCE, FLAG OP, 165
VALUE,
at what time to be estimated, wbere restitution decreed, 35 1
VIATICUM
where mate improperly dismissed, 23
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INDiaC; '415
VICE- ADMIRALTY,
appeal f rom^ 30
WAGES ....
earned on board a tender, whether the ship herself k liable to .arrest »
(opinion), 354 ^ •
ship detained at Cadiz by foreign sovereign, ^djnnion), 355
advances on accoimt of, deducted, 75 ^
decree for, against master holding himself out as owner, 92
recovered against part owner, whole, 70, part, ^69
master sning for wages paid by himself, 62, 76
master cannot sue in Admiralty for, 8, 79
instance of master suing for, 252
jurisdiction of Admiralty Court as to, 8^ 116 *
freight is the mother of, 28
part decreed, though contract broken, 13, 145
action in personam f >r, 24, 99 *
suits for, 9, 17, 20, 24, 99, 299, 331
forfeiture of appreiitice's by desertion, 20
decreed though whole freight not earned, 29, 299
preferred to bottomry bond, 9111, contrh^ tHK 9
suit for to be instituted within thirty days, 132 *
suit for, not barred by Statute of Limitation, 320
whether seamen must shovel potatoes, 139
opinion as to recovery of, where ship is wrecked but some freight earned, 380,
391, 394, 396
opinion as to efifect of foreign sentence condemning a ship for, 383
recovered by seamen of ship that had negligently damaged another in priority
to damages decreed to the sufferer in the ooUinon, 284
opinion as to right of seaman who ftJls sick, 395
decree for proportionate part of wages, when ship lost, 2^99, 303
master suing for, 252, 314
decree for wages and damages for ill usage, 315
will not be decreed against ship in suit against master, 318
WARRANT,
general order as to sealing of, 303
WEST INDIA PRODUCE,
prize caiises as to, 204-209
WEST INDIES, FRENCH SETTLEMENTS,
prize causes as to, 210-221
WEST INDIES, NEUTRAL ISLANDS,
prize causes as to, 223-227
WRECK,
ioquisition in case of, 248
liability of wrecked goods to pay customs duties (opinion), 353
opinion as to recovery of wreck claimed by lord of manor, 375
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